Parliamentary Privilege First Report

Memorandum by the Crown Prosecution Service


  The Crown Prosecution Service (CPS) welcomes the opportunity to contribute to the Joint Committee's review of parliamentary privilege. Many of the issues to be considered by the Joint Committee, however, involve matters that are essentially the concern of those who formulate public policy; they are not matters of legal expertise. We have, therefore, restricted our comments below to the practical aspects of those issues which are of direct relevance to the prosecution process.


  The extent to which Members of Parliament are presently subject to the criminal law of bribery is unsettled. The Salmon Report (the report of the Royal Commission on Standards of Conduct in Public Life 1974-76) concluded that neither statutory law nor the common law applied to bribery or attempted bribery of a Member of Parliament. It is clear that a Member of Parliament cannot be, in that capacity, an agent for the purposes of the Prevention of Corruption Act 1906. It is equally clear that Parliament is not a public body for the purposes of the Public Bodies Corrupt Practices Act 1889. The position at common law, however, is less clear. Although Mr Justice Buckley ruled during the trial of Harry Greenway MP in 1992 that the common law offence of bribery covers bribery of a Member of Parliament, that was a preliminary ruling at first instance and was not tested by the appellate courts.


  The experience of the CPS is that Article 9 of the Bill of Rights acts as a serious impediment in the effective prosecution of corruption when the allegation is that the defendant has acted corruptly in connection with his or her duties as a Member of Parliament. If Members of Parliament are to be successfully prosecuted for corrupt conduct, the protection conferred by Article 9 must be either narrower in scope, or qualified.

  The current position as regards the use of the Official Report and the published reports and evidence of Committees (Hansard) provides a good example of the way the restrictions imposed by Article 9 may presently hamper a proposed prosecution.

  By resolutions of the House of Commons on 31 October 1980, leave was given for reference to be made in future court proceedings to Hansard without a petition for leave. Article 9, however, provides that proceedings in Parliament are not to be "impeached or questioned" outside Parliament. In order for evidence of proceedings in Parliament to be probative of the corrupt circumstances, should they exist, in which, for example, a question is asked, or a statement made, it will invariably be necessary to enquire as to the motives behind the question or statement. The present position is that, if the reason for adducing Hansard is to invite inferences as to those motives, the evidence should not be admitted, as to do so would amount to a breach of Article 9.


  Article 9 of the Bill of Rights presently affords the protection of parliamentary privilege to "proceedings in Parliament". The evidence supporting an allegation of corrupt conduct on the part of a Member in connection with his or her duties in that capacity may come from a wide variety of documentary evidence, much of which will not necessarily be closely associated with the primary functions of Parliament. The exact scope of the phrase "proceedings in Parliament" is far from clear. Accordingly, it is very difficult to assess the evidential sufficiency of any particular case.

  The situation with regard to the Register of Members' Interests illustrates the problem. Despite authority to the effect that the Register does not fall within the scope of the phrase (Rost v Edwards and Others [1990] WLR 1280 QB), expert legal opinion is divided on the point.

  Clarification of the scope of the phrase would assist by facilitating a more accurate assessment of the evidence available to the Crown in any individual case. Naturally, the narrower the scope of the phrase the less parliamentary documentation would be afforded the protection of parliamentary privilege and the easier it would be to prosecute corrupt conduct on the part of Members acting in that capacity.

6 February 1998

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Prepared 9 April 1999