Examination of Witnesses (Questions 140
TUESDAY 20 JANUARY 1998
140. As a long experienced backbencher, I warm
to the discussion which seems to suggest that the higher up you
go, minister or chairman, the more likely you are to be found
corrupt rather than a mere backbencher who has no influence at
all on taking his seat. This gives me some encouragement to remain
on the backbenches! One point I would like to go back to is that
on treating MPs differently to local councillors, the point that
Sir Patrick raised. I was not quite sure which way we were going
to go on that. Were we going to treat MPs the same as councillors
or councillors the same as MPs, and how far down the line does
this go? Does it just go for corruption or does it go for any
fiduciary problem that you may find by a councillor, for instance,
misuse of public funds or misuse of taxpayers' money? Can MPs
who are on the Defence Committee, for instance, be accused of
wasting taxpayers' money by the defence budget being three times
over that which was estimated or agreed? How far down the line
do we go?
(Mr Straw) I think you may be raising the issue of
surcharge there. The Nolan Committee have made recommendations
about surcharges and proposed that surcharge of councillors should
be removed and in place there should be an offence of misuse of
public office, which should apply to any holder of public office.
We are considering that recommendation, but I obviously understand
the arguments in its favour. On the wider issue, Mr Williams certainly
was a long-standing Member of the Public Accounts Committee and,
indeed, still is, and I am sure he could advise you on the various
sanctions which are available to the Public Accounts Committee
if there has been waste by ministers, permanent secretaries or
Members of Parliament, but I think that is a wider issue and I
am not sure we ought to get into that.
141. Just to pursue for a moment the consistency
with other holders of public office, you have made a number of
references to the common law offence of misuse of public office
in your paper, and again today. I wonder if you could give us
a slightly more full explanation of where you see the Government's
position as of now on this, because this does seem to provide
quite a substantial way forward. I am very sympathetic to your
point about consistency. I do not take Sir Patrick's view. I think
all holders of public office have common duties and responsibilities,
but I am not clear precisely where you see this fitting within
the overall package?
(Mr Straw) We raised in this document, and it was
also raised in the report of Lord Nolan's Committee, that, as
I say, this new offence of misuse of public office should replace
surcharging and, indeed, expand the criminal law more generally.
We are still considering that in the light of representations
made to this document and to the Nolan Committee report, but if
it appears that there is pretty substantial support for such a
change, obviously we will take account of the extent of support
for change if we are going to propose one.
142. You would anticipate that Members of both
Houses could fall fairly and squarely within the categories of
people who could be considered under this?
(Mr Straw) There is an issue about who is an office-holder.
143. Exactly. That is why I am asking.
(Mr Straw) There is much to be said on that point.
Miss Stewart is writing me a note. She may want to speak for herself.
(Miss Stewart) The whole question of misuse of public
office obviously is quite a difficult one in determining the precise
definition of "public office", as the Home Secretary
was just saying. It was an issue on which the Nolan Committee
asked for views. There is the question of whether it should apply
more generally, for example to education authorities, as well
as the question of how it should apply to Members of the House.
The Nolan Committee in its paper drew specific attention to ministers
and I think implied that ministers clearly would be covered but
raised a more general question about whether it should go further.
That is an issue on which we have not yet reached any final view
and we need to consider the comments that people make, indeed
some of the views that are being discussed here.
144. But from what the Home Secretary said this
morning, for example, the chairman of a select committee would
seem to be only in a matter of degree a step away from the power
of a minister, so there would be logic?
(Mr Straw) Yes, there would be logic. You may see
the way my mind is working. These are always, as ever, matters
of degree. Where do you draw the line?
Lord Mayhew of Twysden
145. How much do you mind a constitutional change
which would oblige somebody who was not a defendant MP but somebody
who was subpoenaed to give evidencehow much do you mind
a constitutional change which obliges somebody who has always
been recognised to owe a duty to his constituents and to Parliament
to come before a court in criminal proceedings and be cross-examined
as to why he exercised his judgement in a particular way? Do you
see that as something simply as a matter of gradationyou
have more than once referred to the changes which have been made
in the scope of parliamentary privilege, freedom from arrest and
so forthor do you see this as something considerably more
substantial than that?
(Mr Straw) I think I see it as a matter of gradation.
I know there is a prior issue of principle but I think we can
take comfort in the fact that it would happen very rarely indeed.
I also go back to the analogy, which I think is a fair one in
this area, with local government. We have elected local councillors
who owe similarnot the same but similarduties to
Members of Parliament to their constituents and who are supposed
to speak and act without fear or favour. I believe that where
allegations of corruption against members of local authorities
have been made, as they have beenthere has been a series
of convictions over the yearsissues have arisen as to not
only the conduct of those individuals who have been charged but
also of their colleagues who have not been charged and some have
ended up in the witness box. That is what happens with criminal
trials and I think there are consequences which go with the changes
which I am proposing which, as I say, I do not resile from. This
is one of them. It will not happen very often. I think it will
be a matter for the judge to ensure that the evidence which is
sought is relevant, that it does not turn into the kind of excursion
that Lord Archer was worried about, and I think that, although
it will represent a departure in terms of potential obligations
of being a Member of this House, there is a greater good achieved
by it, namely, that Members of Parliament are no longer, as it
were, above the law when it comes to corruption.
146. Do you recognise as a practical distinction
or not what was put to you by the Chairman some time ago, that
a particular change might be one which was limited to the actions
of a Member of Parliament which did not constitute the proceedings
in Parliament, and we have all of us been referring to the case
of Mr Greenway? I suspect that Mr Bramley would be able to give
us the answer whether there was an acquittal at the direction
of the judge or not. I am sorry to say that although I was Attorney
at the moment I cannot remember exactly whether that was the case
or not. But while he is thinking, that was a case, was it not,
where there was no added-on factor of a question asked in Parliament?
These were specific actions which you yourself, Home Secretary,
have characterised, though without, of course, being held to the
detail, which are outside any parliamentary proceeding. Would
there be, for example, in your view, a practical halfway house
in which the anxieties which have been voiced round this table
about letting the courts examine why persons not defendant MPs
acted as they did in parliamentary proceedings, could be excluded,
where, as part of the prosecution case, there was no element of,
"Oh well, you asked a question," or where no question
had been asked and, therefore, it could not be part of the defence
case? Do you see it as a kind of dividing line? It would not give
you everything you wanted but it would make the point which you
wish to make that corruption or corrupt behaviour has to be subject
to the same sanctions, notwithstanding the defendant is a Member
of Parliament, as are loaded on everybody else and you will be
able to say it is only out of the special circumstances that affect
a Member of Parliament as the legislature in this country that
we do not enable the courts to go further than the Bill of Rights
(Mr Straw) Lord Mayhew, I understand the case, and
as I said earlier, this was raised in the consultation document
published by the previous administration in December 1996. I really
think there are quite severe practical problems about drawing
this kind of distinction between what happens in Parliament itself
and what happens outside, and aside from the practical problems
there is an issue of principle, which is that I think it would
make for really quite severe difficulties in terms of the reputation
of Parliament if members of the public saw a situation where someone
was able to evade conviction when he or she could have been convicted
if evidence which is on the public record anyway by definition
could have been adduced before the court, and I think the public
would regard that as a very odd situation. I would also say that
I find persuasive one of the arguments used in this consultation
document. It is in paragraph 16. They recite the arguments against
making MPs subject to the criminal law and then go on to say:
"But the contrary view is that disapplication of Article
9 of the Bill of Rights is unnecessary since the corruption is
complete when the bribe is given and accepted for a corrupt purpose;
what happens thereafter in Parliament is nothing to the point."
It then says: "However, it may be necessary to consider the
conduct of the Member in question, in Parliament, as evidence
to prove that the offence was committed." I think if one
is searching for a way through these theological thickets, then
what is said in paragraph 16 provides a quite useful route.
147. Home Secretary, may I raise with you another
possible implication of criminal legislation. Under the Scotland
Bill Members of the Scottish Parliament would appear to be subject
to the Prevention of Corruption Acts without qualification, and
the Scotland Bill also adopts something very similar to the advocacy
rules contained in the House of Commons Code of Conduct but treats
breaches of the rule as criminal conduct rather than as a matter
for parliamentary discipline. If MPs and Peers are made subject
to the criminal law in relation to bribery, will the next step
be that paid advocacy would become a criminal offence?
(Mr Straw) The Westminster Parliament is sui generis,
as I think everybody here knows. There is a profound distinction
which is reflected in the text of the Scotland Bill, which is
that it is the Westminster Parliament which is sovereign and the
Scottish Parliament which is being made by the Westminster Parliament.
I am not going to talk about parish councils on this occasion
but what is the case is that whenever Parliament itself has set
up new institutions, including institutions a million miles away
from parish councils, like a Scottish Parliament, and very august
and dignified bodies like the Scottish Parliament, it is duty
bound to lay down schemes of arrangement for the conduct of Members
and in that particular there is a parallel to be drawn between
what Parliament over the years has done in respect of other public
bodies like local authorities and health authorities and what
it is now doing in respect of the Scottish Parliament. This is
a new institution. It does not have a thousand years of history
to rely on and all the conventions that go with it, nor does it
have Erskine May, and I say that in a very serious way,
which amounts to the nearest statement we have of constitutional
principle and practice and which is regarded as authoritative.
So we are starting from scratch and it is, therefore, very important
that rules of probity should be laid down from scratch. Different
considerations may apply to Parliament, although I have given
the Committee the benefit of my opinions this morning.
148. Can I next seek your help on one aspect
of the substantive definition of the criminal offence. There are,
of course, a number of material differences which distinguish
the position of a Member of Parliament from the public officers
to whom the Prevention of Corruption Acts apply, for example the
independence of their position, their accountability to their
constituents, duty to exercise free speech and to call the executive
to account, and there may properly be thought to be even more
differences when the unique position of Peers is considered. In
both Canada and Australia this has been recognised by specifying
an offence relating only to bribery of Members and Senators. In
Australia, for example, there is a provision that a Member who
receives a benefit of any kind for himself or anybody else on
the understanding that the exercise by him of his duty or authority
as a Member will be influenced or affected is guilty of an offence.
If this Committee were minded to suggest that if there is to be
criminal legislation Members of the two Houses should be specially
provided for in legislation rather than made subject to a general
offence of bribery, would this encounter any fundamental objection?
(Mr Straw) I do not think so, my Lord. It is, frankly,
as you have indicated, a complicated issue and it requires a lot
of further thought. As I have indicated, I have had a good deal
of clarity of many of the issues here but this is one on which
for me I am still thinking.
149. You will have seen the evidence given on
this question of bribery by the Clerk and the Clerk Assistant
of the House of Commons to this Committee in December. The thrust
of parts of their evidence is different from the course you are
now currently favouring. Are there any particular comments you
would like to make on any parts of their evidence?
(Mr Straw) I confess I did not read every word of
their evidence but I have read a pretty thorough summary of their
evidence. I would say, with respect to them, that I think they
were pointing out, as they are duty-bound to do, the difficulties
in making any change in each case and there are always reasons
for not doing things and usually only one reason for doing something.
As I have indicated, my Lord Chairman, my own view is that although
there are plainly disadvantages in making Members of Parliament
subject to the general criminal law, those disadvantages are overridden
by the advantages of so doing.
150. I would like to pass for a moment from
the particular topic of bribery and ask for your assistance more
generally on the question of parliamentary privilege. Have you
any view on whether Members should be immune from prosecution
under the Official Secrets Act in relation to statements made
in the House?
(Mr Straw) I do not believe we should be immune from
prosecution, because otherwise one could envisage situations in
which Members of Parliament and presumably accomplices outside
could subvert wholly the purpose of Parliament in passing the
Official Secrets Act, namely, to preserve information which ought
necessarily to remain secret. So I do not think there is any good
reason whatever for that.
151. Would the incorporation of the European
Convention on Human Rights into United Kingdom domestic law as
presently proposed have any implications for parliamentary privilege?
(Mr Straw) I do not think directly, my Lord. There
are greater experts around the table here than I am and it is
worth repeating always that, as is known, what we are proposing
is not new substantive rights in respect of British citizens,
British residents, but simply to make those rights more accessible,
and these are rights which technically have been available to
institutions and individuals in this country for 50 years and
sometimes are available to them if they are willing to take the
long, tortuous and expensive route to the European Court of Human
Rights in Strasbourg. So we do not anticipate it. I am open to
correction by my better informed colleagues.
152. I think more than once you have mentioned
the need for accessibility. Have you a view on whether parliamentary
privilege should now be codified into a single statute?
(Mr Straw) No, I am sorry, I am going to bat that
one back. I think it is a matter for your Committee, not for me.
I am here to give advice on a narrow issue of the law on corruption
and bribery. I think it would be pretty difficult to codify parliamentary
privilege into a single statute, would it not? There would be
the question of how that would help, but anyway, there are many
distinguished lawyers, my Lord, on your Committee and maybe you
will come to this view.
153. Can I, as we finish, return to the question
for a moment of timetable. As you appreciate, the Committee wholly
understands and sympathises with the Government's wish to make
progress as soon as possible. The Committee is also conscious
that if Members of Parliament and Peers are brought within the
scope of criminal legislation, as you are currently favouring,
this would represent an incursion into the protection of Article
9 of the Bill of Rights and the Committee has in mind that it
might be unwise for it to make a recommendation relating to the
particular incursion represented by the proposed criminal legislation
for bribery without considering the problem in the round in relation
to all other issues where questions of that type arise. That is
the difficulty that is facing us, that it might be undesirable
for us to express a view on one aspect in advance of and separately
from the other respects in which Article 9 would have to figure
in our recommendations. You mentioned a deadline of four to six
months. We shall have that in mind. If we are not able to attain
it and if we are not able to accede to your invitation to produce
a separate report in advance, I am sure you will accept it is
not through lack of sympathy or willingness to assist?
(Mr Straw) I am very grateful to you, Lord Nicholls,
for putting it in that way. I said what we would find desirable
from our point of view, but obviously on this issue I am very
much in the Committee's hands. I have already made it clear that
I think it would be an unwise Home Secretary who went to the House
of Commons with proposals for change in this area without the
benefit of your Committee's advice but I understand the argument
that you have advanced. I think that it is very much a matter
for you and the Members of your Committee and not for me.
154. If there are no other questions, may I
thank you, Home Secretary. We are grateful to you and to the members
of your team for your assistance.
(Mr Straw) Thank you very much.