Parliamentary Privilege

Parliamentary Privilege First Report

CHAPTER 3: BRIBERY AND ARTICLE 9

The present position

135. Bribery of a member of either House, or the acceptance of a bribe by a member, is a contempt of Parliament and can be punished by the House.[188] It is generally believed, however, that such conduct is not a statutory offence under the Prevention of Corruption Acts 1889-1916. This is because neither House is a `public body' for the purposes of the Public Bodies Corrupt Practices Act 1889, and a member of Parliament is not an `agent' for the purposes of the Prevention of Corruption Act 1906.[189]

136. There is some uncertainty on whether the common law offence of bribery of a person holding a public office extends to members of Parliament. The 1975 Royal Commission on standards in public life[190], presided over by Lord Salmon, expressed the view that membership of Parliament did not constitute public office for the purposes of the common law. Doubt has been cast on this pronouncement by the prosecution of Mr Harry Greenway, a member of the House of Commons, for this offence in 1992 (he was subsequently acquitted).[191] The trial judge ruled that members were subject to the common law offence, but his ruling was not tested before the court of appeal. Although there are some Commonwealth cases, no other member of the United Kingdom Parliament has been charged with bribery in connection with his parliamentary duties. It seems there is no equivalent common law offence in Scotland applicable to members of Parliament.

137. Even if the common law offence of misuse of public office does apply to members, a trial could encounter insuperable difficulty should either side wish to call evidence falling within article 9 of the Bill of Rights. Article 9 prevents evidence being given in court which questions proceedings in Parliament. In consequence the prosecution might lack evidence necessary for a successful prosecution, or the defendant might be unable to call evidence needed for his defence. Either way, if that were to happen, a proper trial of the member might not be possible. For the same reason a person who offers a bribe may also be beyond the reach of the courts.

138. The Salmon commission recommended that Parliament should consider bringing corruption, bribery and attempted bribery of a member of Parliament acting in his parliamentary capacity within the ambit of the criminal law.[192] That was in 1975. Twenty years later the committee on standards of conduct in public life, a committee appointed by the Prime Minister and chaired by Lord Nolan, recommended the law should be clarified, and suggested this could be combined with the Law Commission's consolidation of the statute law on bribery generally.[193] In December 1996 the Home Office published a consultation paper on the clarification of the law relating to bribery of members of Parliament.[194] This was followed in June 1997 by a further consultation paper on corruption generally.[195] The Law Commission issued both a consultation paper and a final report on the law of corruption.[196] The Law Commission report recommended that the present law should be replaced with a new offence applicable to all.

139. Any change in the law which brings the parliamentary activities of the members of both Houses within the scope of the statute law on corruption will have considerable implications for article 9. Such a change will mean that, contrary to article 9, evidence could be given in court which questions proceedings in Parliament. If corrupt conduct by a member is established, the member will be liable for punishment primarily by the courts rather than by Parliament. Bribery legislation having this effect will represent a fundamental incursion into article 9. Since the government is at present considering such a change in the context of general reform of the law on corruption, we have examined this issue and the possible options in some detail.

140. We are confident there are very few instances of corruption involving members of Parliament. Certainly, we have seen no evidence suggesting otherwise from the parliamentary commissioner for standards or any other source. But, as already noted, the present legal position is unclear and unsatisfactory. The need for clarification is the more pressing because of recent cases and allegations, such as the case concerning `cash for questions' in 1994.[197] Furthermore, there is a public perception that something is wrong which needs to be put right. This came out strongly in evidence. What is needed is a fair, workable and publicly acceptable system for dealing with corruption or allegations of corruption of members of each House.

141. A solution is not easy. The Law Commission summarised the issues:

`Whether members of Parliament are subject to the criminal law of corruption and more particularly whether they should be are both contentious issues currently to the fore in public debate. . . on the one hand it has been said of members of Parliament that `Few are in a higher position of trust or have a duty to discharge in which the public have a greater interest', and they should arguably therefore be subject to the criminal law. On the other hand, they are sui generis, in that although they have the benefit of parliamentary privilege, which protects them against criminal liability for things said in parliamentary proceedings, they are, in consequence, subject to the jurisdiction of Parliament'.[198]

142. In his evidence to the Joint Committee the Home Secretary expressed his firm view that members of both Houses should be brought within the framework of the new legislation which the government proposed to introduce to reform the law of corruption. Mr Straw said the government would like to know our views before reaching any decisions.[199]

Options for reform

143. In essence the alternatives are either to strengthen Parliament's own jurisdiction and make it generally acceptable; or hand over jurisdiction to the courts; or divide the responsibilities between the courts and Parliament. The Home Office 1996 consultation document suggested four options:

1. To rely solely on parliamentary privilege to deal with accusations of bribery of members of Parliament.

2. To subject members of Parliament to the same corruption statutes as other people.

3. To distinguish between conduct which should be dealt with by the criminal law and that which should be left to Parliament itself.

4. To make criminal proceedings subject to the approval of the relevant House of Parliament.

We have considered these options, and others.

Self-regulation by Parliament

144. There are major disadvantages with leaving things as they are. Bribery is a serious offence. With the abandonment of impeachment early in the last century, Parliament no longer possesses any method of dealing with criminal offences, and it treats any cases which arise as contempts.[200] The Greenway case has drawn attention to the anomaly that, because of the legal immunity accorded in article 9 to proceedings in Parliament, members are at present exposed to more serious punishment for offences unrelated to proceedings in Parliament than for offences that are so related, even though many people would consider the latter to be more serious.

145. The position of the briber is even more strongly contrasted. He is exposed to a long sentence of imprisonment for bribery which is unrelated to proceedings in Parliament. When parliamentary proceedings are involved, he is in practice immune from any significant punishment, either by the courts or Parliament.

146. It is not easy to create a new and effective criminal procedure for Parliament. Except for the House of Lords in its capacity as a final court of appeal, Parliament has long since ceased to have the judicial features of a High Court of Parliament. Any procedure established by either House would need to include five key stages: investigation; deciding whether to prosecute; presentation of the allegations (prosecution); reaching a decision (trial); and punishment (sentence). In varying degrees neither House is properly equipped to carry out any of these functions. There are no facilities to undertake a serious police-type investigation. The only established parliamentary machinery for considering a case is a select committee, either one specially constituted or the existing committee for privileges in the Lords and the committee on standards and privileges in the Commons. Select committees have occasionally been given power to hear counsel, but the infrequency with which this power has been conferred and used underlines the fact that select committee procedures are not designed to discharge a judicial (adjudicatory) role. Existing procedures do not have the in-built safeguards provided by a court of law. Nor are the punishments available comparable to those available to a court, particularly in respect of imprisonment.[201]

147. Some of these defects might be capable of being cured, at least in part. Procedures could be amended to enable members on trial to question witnesses either personally or through counsel. Rules of evidence might be established and the committee chairman given powers to enforce them. A committee might be assisted by its own counsel and legal staff. Other measures might be introduced along the lines suggested below concerning the House's disciplinary power in respect of contempt.[202] It might be possible to abandon the select committee machinery altogether and establish a special committee or tribunal of some kind, perhaps consisting of former members of the House of Commons together with members of the judicial committee of the Privy Council and supported by independent professional staff. The police-type investigatory function might be carried out to some extent by an officer of the House appointed for the purpose. To do his job properly such an officer would need to be able to use the police to assist him and have some police powers conferred by statute, including power to search on issue of an authorised warrant.

148. Major difficulties would remain. It would be difficult to convince the general public that any system of self-regulation was even-handed as between members of the public, exposed to the full rigours of the law, and members of Parliament, to whom the criminal law would not apply in this area. Unless the impartial, judicial nature of the prescribed committee were clearly established, there might also be a perception that its proceedings were liable to be influenced by party political considerations. Unless, too, any committee were given appropriate statutory powers, there would be serious practical difficulties in dealing with former members, and in carrying out the investigation, prosecution and trial of the briber and any intermediary between briber and bribed. Allowing debate on the floor of the House on the culpability of non-members, or the sentences to be imposed on them, is unlikely to be acceptable. Scarcely more acceptable would be a debate on whether to sentence a guilty member to a substantial term of imprisonment. Any system devised within this framework would be unlikely to measure up to contemporary standards of fairness. In particular, it is doubtful whether it would be seen to provide the accused person with the fair hearing by an independent and impartial tribunal guaranteed by article 6 of the European Convention on Human Rights.[203]

Criminal prosecution in the courts

149. Much of the evidence presented to the Joint Committee supported the consultation paper's second option. Witnesses urged, as a good principle, that the law should apply equally to everyone and especially to law-makers, and that criminal prosecution in the courts was the only effective way of dealing with a member who accepted a bribe and with the briber and any intermediary.[204] Bringing members within the ambit of the general law would also, it was suggested, help to reassure the public and correct any misconception that members of Parliament use their position improperly.[205] Several witnesses thought it wrong that article 9 should appear to have the effect of protecting corrupt members: in no way did this serve the interests of free speech. A former Leader of the House of Commons, Lord Newton of Braintree, commented:

`My general view is that while there are clearly good and sufficient reasons for the privileges of members of Parliament in relation to freedom of speech . . . it is extremely difficult to see why [members] should enjoy the same privileges in respect of bribery and corruption . . . one cannot envisage an argument that says it is necessary for a member to take a bribe or to be corrupt in order to do his job as a member of Parliament'.[206]

150. There are, however, substantial arguments against the second option which need to be considered. Under this option the courts would be able to determine if the actions of a member of Parliament, whether relating to his parliamentary duties or not, were corrupt. As the Home Office consultation paper recognised, to allow the courts to have this power would give rise to significant questions of constitutional principle.[207] An essential purpose of article 9 is to protect freedom of speech by protecting members from being called to account in any court for what they say or do in parliamentary proceedings. Under this option members might in future be questioned in court, in the context of a charge of bribery, about the motives for their speeches or their actions in the House. In earlier parts of this report[208] we have recommended that questioning of parliamentary proceedings should be permitted in the courts in certain circumstances. But our recommendations included the important proviso that, ministerial liability apart, there should be no question of legal liability for any member, officer, or witness in relation to acts done or statements made in the course of parliamentary proceedings and that, except for the interpretation of statutes and non-critical use of parliamentary statements, the two Houses should retain power to decide when to grant a waiver.

151. Another problem is that the courts might also become involved in examining the motives of members of Parliament who were not themselves under suspicion[209], and disagreements might arise between Parliament and a court or a prosecuting authority over what parliamentary behaviour was acceptable.[210] Members of the House of Commons particularly might be subject to malicious allegations, perhaps for party political reasons.[211]

Is there a middle way?

152. From the outset the Joint Committee recognised the difficulties involved in implementing either of the first two consultation paper options. We therefore sought to find an alternative, practical solution. Is there any means by which an effective and convincing law on corruption can be applied while at the same time the two Houses retain a degree of responsibility and control? Might this be done by keeping some matters within Parliament's own jurisdiction but transferring others entirely to the jurisdiction of the courts? Are there merits in establishing parliamentary machinery to vet proposed prosecutions? With the desirability of a middle course in mind, we turn to further possibilities.

Part self-regulation, part criminal prosecution

153. The third option put forward by the Home Office suggested that while members might be answerable to the courts for some offences, perhaps the more serious ones, other offences should continue to be dealt with by Parliament. It might be possible for each House to determine, through one or more resolutions, that conduct of a particular type was unacceptable but should be dealt with solely as a contempt of the House, exempt from proceedings under the criminal law. If a case involving such conduct came before the courts, their role would be restricted to deciding, on the facts of the case, whether the conduct complained of was covered by an appropriate resolution of the House.

154. This proposal involves dividing the jurisdiction to deal with bribery cases between the House and the courts, with some cases dealt with by the House as a matter of self-regulation and others dealt with through the ordinary investigative, prosecuting, and criminal trial procedures. Insofar as the House would exercise jurisdiction, this course suffers from the objections already mentioned relating to the House's unsuitability to exercise a criminal jurisdiction. Insofar as the House did not assume control of members' conduct, jurisdiction of the criminal courts would involve the same sort of problems as the second option. The third option therefore has some of the drawbacks of both the first and second options, while at the same time lacking the merit of the House retaining exclusive control over its members' activities (the first option) or the merit of members being seen to be subject to the same criminal law as everyone else (the second option).

Criminal prosecution subject to approval by the House

155. Under the fourth consultation paper option the relevant House would decide whether, in a particular case of alleged corruption, criminal charges should be brought or the House itself should deal with the issue. This possibility suffers from the same disadvantages, already mentioned regarding the third option, inherent in a division between the House and the courts. In particular, the fourth option does not solve the difficulties of the House operating as an investigative body or prosecuting body or court of law.[212]

156. This course suffers additionally from disadvantages of its own, arising from the need for a decision of the House. Debate by the House might well prejudice a fair hearing.[213] It is hard to see how a member could get a fair trial after a debate in the House (no doubt televised) or, for that matter, after consideration in public by a select committee. Party politics might also intrude; friends of the member might use the publicity which parliamentary proceedings attract to mobilise support on the member's behalf. If a police investigation had not taken place, or was not yet complete, it would become difficult, if not impossible, for the investigation to proceed. There would be a risk of inconsistency in the House's decisions whether to give or withhold approval for prosecutions. Finally, if the House were to authorise a prosecution, the same problems relating to the erosion of article 9 would arise as under the second option.

Other suggestions

157. The Clerk of the House of Commons, Mr W R McKay, made two other suggestions[214], but pointed out these also had disadvantages. The first was that the House could waive privilege, but only so far as the accused member was concerned. The disadvantages of such a procedure include those relating to the fourth option, and in addition the difficulty of calling another member as a witness to be cross-examined in the criminal proceedings without eroding article 9. If the other member cannot be cross-examined about his motives, he cannot fully give evidence in the criminal proceedings and this may hamper the defence of the member who is charged. If, however, the other member can be cross-examined and the waiver extends to him as well, this suggestion becomes indistinguishable in substance from the fourth consultation paper option.

158. Mr McKay's second suggestion was to bring within the ambit of the criminal law all the activities of a member except those relating to proceedings in Parliament, which would remain within the exclusive jurisdiction of each House. This option has the advantage of resolving the existing uncertainties in the common law in favour of a defined statutory offence. Further, this would in practice equate the position of members of the United Kingdom Parliament with members of the federal Australian Parliament. There, a statutory offence was added to the criminal code in 1982 but no provision was made for this to override article 9.[215]

159. However, this option again suffers from several disadvantages. It might be difficult to distinguish between a member's activities inside Parliament and those outside, and there could be circumstances in which making the distinction for this purpose would be artificial.[216] In some cases the member's activities in the alleged bribery might have taken place outside Parliament, but an important part of the evidence might consist of a speech or other activities of the member in the course of parliamentary proceedings. The Home Secretary expressed the point forcefully in evidence:

` . . . the public would be very unimpressed if a member of Parliament, against whom there was otherwise pretty compelling evidence, was nonetheless able either to avoid a prosecution or to gain an acquittal simply because the key part of the evidence which was otherwise public could not be adduced before the court'.[217]

Insofar as the activities of a member related to proceedings in Parliament and the courts were excluded, the drawbacks mentioned regarding the consultation paper's first option (self-regulation) would apply.

Parliamentary sifting

160. One possibility much discussed in the course of our deliberations deserves special mention. Under this proposal the two Houses would deal initially with allegations of bribery against their members. A sifting committee would be appointed, containing members from both Houses, but with independent status and with independent (non-member) representatives. The sifting committee would consider whether the allegations were sufficiently serious and well-founded to warrant a police investigation or, if the matter was put before them by the police, whether charges should be brought. In trivial or vexatious cases the matter would not proceed.[218] In what proved to be essentially disciplinary matters, House procedures would take over. In serious cases the member's immunity under article 9 would be waived and the member would face the ordinary criminal law.[219]

161. This course has its attractions. Giving each House a statutory right to waive its privilege under article 9 on a case by case basis would diminish the inroads into article 9 made by the alternative course of giving the criminal courts jurisdiction in every case of alleged corruption. Furthermore, and importantly, it would mean the House would, in each case, remain in control of the article 9 immunity. The right of waiver would harmonise with the recommendations made above[220] in respect of defamation and other criminal and civil proceedings, although with the important distinction that here the member's immunity from legal liability would be removed, whereas in defamation and other actions we are recommending that questioning of parliamentary proceedings should be permitted but without any erosion of legal immunity.

162. Like every other suggestion, this suggestion is also attended with difficulties. One difficulty relates to obtaining the evidence on which the sifting body would act. Except with the agreement of the member, the police would not be able to carry out any investigation on a complaint involving proceedings in Parliament before the article 9 privilege was waived. The House would have to reach its decision on the basis of its own investigations. But the House does not have, and cannot realistically be expected ever to have, police-type investigatory facilities. Thus there would be no analogy with ordinary committal proceedings, which take place after an unimpeded police investigation.

163. Another difficulty concerns the identity of the body which would make the decision on waiver of the article 9 immunity. A decision by the House itself would encounter the difficulties already mentioned regarding the fourth option in the consultation paper. Unless the two Houses were prepared to delegate the sifting power completely to a committee or other specially constituted body, meeting and deciding in private, and were also prepared to adopt rules preventing the matter being debated on the floor of the House, any case in court might be irretrievably prejudiced.

164. A decision, binding on the House, made by such a committee could avoid some of these difficulties, but a decision made in this way would be unlikely to command public support. To be acceptable the sifting committee would have to be composed in part of eminent persons who were not members of either House. In other words, the only practicable way to carry out a sifting or vetting exercise in an acceptable manner would be for Parliament to hand over the exercise to an eminent and confidential `vetting authority', acting on its behalf and reporting to the two Houses periodically or on a case by case basis. The vetting authority would have to carry out similar functions to those exercised elsewhere by the Attorney General and the Director of Public Prosecutions in deciding whether to consent to the institution of a prosecution. There would still be risks and drawbacks: presumably an essentially parliamentary body would not be appropriate to consider whether the briber or an intermediary should be prosecuted, and in such cases there would always be the risk of disagreement between Parliament's vetting authority and the other prosecuting authority. Even with this procedure there might be some residual public suspicion that members were receiving special treatment.

165. This option deserves serious consideration. Nevertheless, we believe it is a second best solution, principally because the outcome would be largely cosmetic. The degree of delegation necessary for the procedure to command public support and not prejudice a trial would mean that parliamentary control would be nominal only. A similar function could just as well be carried out by the Attorney General in his own right, by making his consent a prerequisite to a prosecution. This would protect members against frivolous and vexatious prosecutions, which would be the essential function of the suggested vetting committee. We consider this role of the Attorney General below.

Bribery: the Joint Committee's conclusion

166. The problem of bribery exposes a conflict between two important public interests: the need for corrupt members of Parliament and those who corrupt them to be punished in the same way as everyone else, and the need to maintain the freedom of speech protected by article 9.[221] There is no easy answer, and no answer is perfect.

167. While recognising its disadvantages, we recommend the second option contained in the Home Office consultation paper as the best way forward. Members of both Houses should be brought within the criminal law of bribery by legislation containing a provision to the effect that evidence relating to an offence committed or alleged to be committed under the relevant sections shall be admissible notwithstanding article 9. This would be fair, workable and acceptable to the public.

168. The practical impact this proposed change will have on article 9 should not be overstated. We anticipate there will be few prosecutions of members, because we believe there are few instances of corruption of members. We anticipate, further, that in only a small proportion of any prosecutions will it be necessary to question proceedings in Parliament. Thus, to allow evidence to be given as we recommend will involve only a minimal encroachment upon the territory safeguarded by article 9. The occasions when a court will be called upon to question a parliamentary proceeding will be rare indeed.

169. Corruption is serious and insidious, and particularly damaging if it takes hold in a democratic institution. It must be treated as a serious crime. Its seriousness must be brought home to everyone, including the intermediary who receives a fee to resolve a problem for his client and may be tempted to use some of this money in `oiling the wheels'. This means bribery can only be dealt with effectively by using the police and the courts. There are too many disadvantages in any other solution. In particular, this option is the only credible remedy. It is also the only credible deterrent for any briber, as well as being the best means of retaining public confidence.

Applying criminal legislation to members

170. Having accepted the principle that members should be brought within the scope of the statute law on bribery, several further issues arise.

Safeguard against vexatious prosecutions

171. The Law Commission recommended that for its proposed new offences the approval of the law officers should no longer be required for the institution of proceedings. We do not agree. All those who are in the public eye are particularly vulnerable to mistaken or malicious allegations. For these people, and no doubt others, the new offence will create a high risk that the unrestricted right of private prosecution will be abused.[222] Members of Parliament are no exception. Indeed, they are specially vulnerable, by reason of their high profile in a party political role and their connection with policies and statements which are unpopular with some members of the public. It is obvious that irreparable damage could be caused to a member were a politically motivated prosecution to be launched shortly before an election.

172. Under the Public Bodies Corrupt Practices Act 1889 and the Prevention of Corruption Act 1906[223], prosecutions for corruption require the consent of the Attorney General or the Solicitor General. We consider that, with the new offence, the consent of the Attorney General should similarly be required for a prosecution. In addition to his function as a guardian of the public interest, the Attorney General has experience of Parliament which would make him particularly fitted for this role.

173. The present Attorney General said in evidence[224] that it would be unsatisfactory for the Attorney General, as a member of the House of Commons, to have the task of deciding whether another member should be prosecuted. We sympathise with this view, but can find no satisfactory alternative. The Director of Public Prosecutions does not appear to be appropriate because he does not have parliamentary experience. Moreover, to impose the task on him would not wholly avoid the difficulty because the Attorney General is answerable in the House for decisions of the Director of Public Prosecutions and by statute is responsible for superintending his conduct.[225] The Lord Chief Justice of England expressed his confidence that the Attorney General would not make decisions in this area on the basis of party affiliation[226]. We agree, and recommend that prosecution under the new legislation should require the consent of the Attorney General or, in Scotland, the express consent of the Lord Advocate.

The rules and practices of the two Houses

174. Generally speaking, the criminal law draws no distinction between a member of either House and any other member of the community. We are recommending that the new bribery legislation should apply to members notwithstanding article 9. If this recommendation is accepted, then members should, so far as practicable, either be liable to the same law as applies to others with a duty towards the public or, if the distinction between public and private sectors is removed, be liable to the law as it applies generally. Members should be, and should be seen to be, subject to the same criminal offence as everyone else. There is obvious attraction, if this is attainable in practice, in having a new offence of bribery applicable to everybody.

175. The Law Commission's draft Corruption Bill, set out in annex D of this report, would replace the existing common law and statutory offences with a modern statute applicable universally. In the light of the Home Office initiative in December 1996, the Law Commission did not deal with bribery of members of Parliament. The draft bill does not refer expressly to members although, as drawn, it applies to members as much as everyone else.

176. The main offences in the draft bill are drawn broadly. In essence it would become an offence to confer or obtain an advantage corruptly. `Advantage' is defined in broad terms, and the Law Commission has made a valiant attempt to grapple with the meaning of `corruptly'. Drafting a watertight definition is not as easy as might seem, because not every favour is conferred with an improper intent. Their suggested definition is:

`A person who confers an advantage . . . does so corruptly if (a) he intended a person performing his functions as an agent to do an act and (b) he believed that if the person did so it would probably be primarily in return for the conferring of the advantage . . . '[227]

A person who performs functions of a public nature is to be regarded as an agent performing functions for the public.[228]

177. A definition in such wide and loose terms (`primarily in return') might in practice give rise to its own evidential and other difficulties. The government's position is not yet clear. In reply to a written question on 31 July 1998 the Home Secretary noted there was much support for the Law Commission's recommendations for the restatement of the common law offence of bribery and the present statutory offences of corruption in a modern statute, with a clear definition of what is meant by acting in a corrupt manner.[229] At this stage the government also accepted in principle the Law Commission's proposal that there should be a single offence of corruption to cover both public and private sectors. An inter-departmental working group was meeting to examine further the consolidation and amendment of the law of corruption. In November 1998 the Home Secretary added that it was likely the government's reform would be modelled along the lines of the Law Commission's draft bill and that the government would wish to construct a criminal law having general application.[230]

178. Payments and advantages accepted by members are already subject to registration requirements in both Houses. In particular, under the House of Commons code of conduct receipt of a payment or advantage triggers rigorous registration obligations and also restrictions on initiating proceedings in Parliament and participating in debates. Having regard to these obligations and restrictions, it is difficult to see how a payment or advantage, duly registered if so required, could be regarded as corrupt. It really goes without saying that, on a charge of corruption, the court must be able to take into account compliance with these obligations and restrictions when deciding whether a member's intention was corrupt. Whether the government adopts the Law Commission's draft bill or takes a different and so far unheralded approach, the legislation must leave scope for the court to do this.

179. Members, for their part, need to have as much certainty as possible. They need to be confident that if they accept and disclose certain payments or advantages, their conduct will not be impeached as corrupt. To this end each House will no doubt wish to review its rules and practices when the bribery legislation is enacted, to ensure harmony with the legislation and maintain suitably high standards among its members. Compliance with the code of conduct must be highly relevant in determining whether a prosecution should be brought and in establishing in any subsequent court proceedings whether an offence has been committed. However, while compliance with the code would usually provide a persuasive defence, no code of conduct will cover every situation and the enacted law has to be paramount.

180. In this regard there is a point the two Houses should consider. As the former parliamentary commissioner for standards[231] pointed out in his evidence, the code of conduct and the related rules of the House of Commons were drawn up by the House and were intended to be interpreted by the House.[232] They were not drawn up in legal form or intended to be interpreted by the courts. While it is true that the courts often look at professional codes of practice, this is done mainly in the context of civil actions for negligence or disciplinary appeals, not criminal charges heard before a jury. We recommend that both Houses should take steps to ensure that the rules and conventions concerning standards of conduct are in a readily accessible form capable of being understood outside Parliament as well as within.

Relationship with disciplinary proceedings

181. Exposure to criminal liability will not exclude either House from subsequently imposing an appropriate disciplinary penalty on a member found guilty of bribery by a criminal court. Criminal liability will not prevent the House imposing a suitable penalty for breaches of the code of conduct. Likewise, a member acquitted by a criminal court could nevertheless be found guilty by the House of a breach of its own code of conduct.

182. There may be practical problems in ensuring that the disciplinary machinery of a House does not prejudice any criminal investigation. Like the former parliamentary commissioner for standards[233], we do not consider these problems would be insuperable. For example, it might be that a member was charged, or it became apparent criminal charges were imminent, while a House was investigating related allegations in a disciplinary context. Sir Gordon Downey told us that in these circumstances he would recommend to the committee on standards and privileges that any inquiry should be suspended pending completion of the police investigation and court action. This is clearly correct, as the more serious case might be prejudiced if a House investigation into related matters proceeded at the same time. Indeed, such circumstances may already arise: for example, if the alleged criminal offence related to a member's conduct as a candidate, or to a tax offence, or to common law bribery unrelated to proceedings in Parliament.

183. It might be more difficult if a committee, or the commissioner, considering a disciplinary matter came across evidence strongly suggesting that a corruption offence had been committed. Should the police be informed? We believe the position here should be the same as if evidence came to light that a member appeared to have committed some other criminal offence for which he would be liable, save for this difference: in the case of a suspected offence of corruption, article 9 would not be available as a shield.[234] The committee should behave as would any responsible citizen, and in appropriate circumstances inform the police.

184. It is perhaps worth stressing the appreciable gap between corruption and the disciplinary matters which Parliament normally considers. Carelessness, forgetfulness, misinterpretation of the rules of registration and declaration, or even flagrant disregard of them, is usually a long way from corruption. Members of both Houses are permitted to have, and often have, business interests which they legitimately pursue. None of this is corruption. The comprehensive manner in which we have dealt with this aspect of our inquiry should not obscure the important fact that we have been dealing with `an extremely rare type of case'.[235]

Misuse of public office

185. In its third report, which dealt primarily with local government, the Nolan committee on standards in public life recommended there should be a statutory regime for misconduct which does not entail bribery or corruption.[236] Otherwise the proposed changes relating to the law of corruption might leave public office holders with less stringent legal obligations than company directors or trustees.[237] The committee proposed the introduction of a new statutory offence of misuse of public office, to be developed from the common law offence of misconduct in public office. One reason was the desire of the committee to replace surcharge, which might be imposed on councillors and local government officers, with some much more broadly based offence of misuse of office for the whole of the public service. In his evidence to us the Home Secretary indicated he was considering whether the new offence should apply to members of either House.

186. The ingredients of the proposed offence are not yet clear. The consultation paper issued by the Nolan committee included as possibilities: unlawfully incurring expenditure; incurring expenditure as a result of wilful misconduct; and the exercise of a public function in a manner which involves dishonesty or oppression or malice. Evidence of an improper intention would be usual but gross negligence would suffice. An inter-departmental working group is currently considering the relationship between any new offence, existing offences, civil remedies and disciplinary codes. The Home Secretary told us he would seek to avoid unnecessary overlaps between any new offence and existing offences, civil remedies and disciplinary codes.[238]

187. The Joint Committee is concerned primarily with the relationship between the proposed new offence and article 9. Until the ingredients of the new offence are clearer, we are unable to express a view on whether, as with bribery, the new offence should override article 9 or whether the matters dealt with in the new offence, or some of them, are better left to self-regulation. As currently sketched, the new offence might have serious implications for government ministers, and it would not be satisfactory for the Joint Committee to attempt to make recommendations on this subject without more information about the ambit of the proposed offence.

188 In 1695 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': C J, (1693-97) 331, 2 May 1695. See too, the Code of Conduct for Members, HC (1995-96) 688, p 4, agreed by the House of Commons on 24 July 1996, where a modernised version of the resolution forms part of the Code. The House of Lords has no comparable resolution, but bribery of a peer would be regarded as a contempt of the House in the same way as bribery of a member of the Commons: Erskine May 22nd ed (1997), p 124. More generally see G Zellick `Bribery of Members of Parliament and the Criminal Law' [1979] Public Law 31. Back

189 See Attorney General's evidence to the Commons Committee of Privileges, HC 351-II (1994-95), p 155; and Cmnd 6524 (Salmon Report on standards in public life), chapter 17. However, see also vol 2 to the present report, p 127 (paragraph 22), p 204 (paragraph 6) and Q 793. Back

190 The royal commission was set up primarily because of public anxiety aroused by the Poulson affair. During bankruptcy proceedings and in a subsequent court case, Mr Poulson, an architect and property developer, referred to members of local authorities and members of Parliament as persons to whom he had given pecuniary benefits. For the House of Commons, see Report from the Select Committee on the Conduct of Members, HC (1976-77) 490. Back

191 In 1992 Mr Harry Greenway was charged with corruptly receiving benefits from a company for using his influence as a member on their behalf. None of these charges related to proceedings in Parliament. Back

192 Report of the Royal Commission on Standards in Public Life, Cmnd 6524, pp 96-99. Back

193 Cm 2850-I, p 43; paragraph 104. Back

194 Clarification of the Law relating to the Bribery of Members of Parliament, December 1996. Back

195 The Prevention of Corruption: Consolidation and Amendment of the Prevention of Corruption Acts 1889-1916: a Government Statement, June 1997. Both of the Home Office documents are reproduced in vol 2.to this report, pp 21-31. Back

196 Legislating the Criminal Code: Corruption: A Consultation Paper (Law Commission No 145) 18 March 1997; Legislating the Criminal Code: Corruption (Law Commission No 248), 2 March 1998, HC (1997-98) 524. Back

197 HC (1994-95) 351; HC (1997-98) 30. Back

198 Legislating the Criminal Code, Corruption, A Consultation Paper (Law Commission No. 145). paragraph 7.42. The quotation within the quotation is from the ruling of Buckley J. in R v Greenway, printed in Public Law, autumn 1998. Back

199 QQ 105-106, 111. Back