Examination of Witnesses (Questions 160
TUESDAY 27 JANUARY 1998
RIPPENGAL CB QC
160. While bribery is being mentioned, may I
ask you this. If there were to be criminal legislation, would
you favour special legislation for particular offences in relation
to Members of the two Houses, or should there be one wide ranging
offence which would apply as much to Members as anybody else?
(Mr Davies) Members of Parliament are in a special
category in public life and it may well be necessary to secure
their position in some way different from the general public.
It depends on what is regarded as the offering of a bribe to Members
of Parliament or to peers. Many Members of both Houses have parliamentary
consultancies which they have to register. In the House of Commons,
there are sponsored MPs and the like, so it depends how far you
take the question of undue influence on a Member of Parliament.
Mr Michie: We do not have sponsors any more.
Mr Williams: No; it finished last year, just
for the record.
Mrs Taylor: It did use to be the case but not
161. So you would favour, if there were to be
legislation, specific provisions tailored for the position of
Members rather than attempting to sweep Members into a universal
anti-bribery criminal offence?
(Mr Davies) Yes, I think so.
(Mr Rippengal) I agree. I think Members of both Houses
are in a unique position and I think it would not be easy for
a general offence of corruption to accommodate them very readily.
162. Is there a problem in the apparent difference
of definition between the two Houses relating to the concept of
public office, to which you refer in your memorandum? If we are
going to have a specific definition for Members of both Houses,
it is surely desirable that it should be not only specific but
identical for Members of both Houses?
(Mr Davies) I assume that legislation could be drafted
to encompass the membership of both Houses, but there is a difference,
I believe, between a Member of the House of Commons who is elected
and Members of the House of Lords who owe their position to the
writ of summons, which asks them to give counsel and to advise
the Sovereign on matters of public affairs.
Lord Mayhew of Twysden
163. But that is a difference surely of route
only, is it not? The function is that of a legislator?
(Mr Davies) Yes.
164. And is that not as much a public office
in your view for a Member of the House of Lords as for a Member
of the House of Commons?
(Mr Rippengal) The view has been taken up to now of
course, apart from the Greenway case, which went I think contrary
to what was regarded as the usual legal view, that Members of
neither House hold a public office for the purposes of the common
law offence of corruption, or indeed the reference to public office
in the Prevention of Corruption Acts. That has been the traditional
view. It was the view taken by the Salmon Commission, but I accept
of course that if one were legislating anew, Members in both Houses
have public duties and ought to be subject to the laws of corruption.
165. Both Houses?
(Mr Rippengal) Both Houses, yes. If you were having
special legislation for defining offences of corruption or bribery
(or whatever it was going to be called) in relation to Members
of Parliament, you might want to have slightly different provisions.
It depends how elaborate the provision was going to be. Members
of the Commons owe duties to their constituents. Members of the
Lords have no such corresponding duties. You might end up with
a slightly different offence. It might cover more ground for the
Mr Williams: But surely that is a matter of
defence, not of offence. It is legitimate to say in defence that
you are looking after constituents' interests, but surely on the
basic point of access to ministers, on your ability to ask questions
and your ability to advocate, a Member of the Lords is in precisely
the same position as a Member of the House of Commons, and those
are the three areas which have given rise to special concern.
Therefore, other than the matter of appointment, there is not
much difference in the Lords' ability to influence, which is as
marginal as is our ability to influence.
Lord Merlyn-Rees: If I may make an observation,
if ever this place became an elected Chamber it would be a completely
different place. In your paper you made a distinction between
more Lords being part-time than full time. There are some Members
of the Commons who are more part-time than others. It would be
very difficult to make the distinction in the legislation, "I
am the undeserving poor, my Lord", that sort of thing.
166. Could I ask if you have any comments on
the article by Professor Graham Zellick, which suggested that
the Salmon Commission was wrong in its view that public office
was something that did not apply to Members of the House of Commons,
although Zellick went on to say that it would still apply to the
House of Lords. But he took the view that Salmon was clearly mistaken
in relation to the House of Commons. It is an area that we have
to clarify, is it not, if we do legislate?
(Mr Rippengal) I would have thought certainly. The
Zellick article I think went against the weight of received opinion.
I think he had one or two Commonwealth cases in his favour but
I would have thought it clear that you could not leave the law
as it is. The Greenway case has moved the law on but the law must
be doubtful, I would have thought, in this sphere as it stands.
Sir Patrick Cormack
167. You talk about special legislation and
that is your preferred route. Can you spell out for the Committee
a little more clearly what form that special legislation should
take and how far you think it would impinge upon Article IX?
(Mr Rippengal) I would need to have given the matter
more thought to try and spell out the ingredients of the offence.
I think there is more than one way of approaching it. You might
have a rather broad brush approach, or you might try and pinpoint
particular matters, but certainly once you got as far as making
it a criminal offence triable in the ordinary way, that would
have an impact on what we call the wider aspect of Article IX.
168. I understand that, of course I do, but
you did in answer to a question from the Lord Chairman say that
the route you favoured was special legislation which would deal
specifically and precisely with Members of Parliament of both
Houses. As you have reached that conclusion, you have obviously
given a great deal of thought to the matter, and I just wanted
you to try and explain in a little more detail the form the legislation
(Mr Rippengal) It is going to have to cover the offering
and taking of bribes by Members of Parliament to exercise their
functions so as to give advantage to the offerer of the bribe.
Whether you want then to spell out particular kinds of conduct
that fall within that and particular kinds that would not be regarded
as falling within that, there is a judgement which would have
to be made when you really got down to the nitty-gritty.
169. Do you think that legislation would also
deal with the offence of offering a bribe to a legislator or would
he or she be dealt with without this legislation?
(Mr Rippengal) Oh no. I would have expected them to
be inseparable elements. The offering of the bribe would have
to be part of the offence, yes.
170. Mr Davies, you used the phrase "special
provision"I noted it at the timeyou obviously
did not throw it in off the top of your head. So what led you
to make that statement in detail?
(Mr Davies) It was because of what I said later, which
was that Members, certainly of the House of Lords, have registered
interests as parliamentary consultants to various bodies on account
of their membership of the House of Lords. They are legitimately
entered into, they are registered; but nevertheless from some
perspectives it might be viewed that they are being paid to deliver
a service. One has to distinguish that from perhaps what would
be regarded as a bribe in the sense of being offered money through
171. Excuse my ignorance amongst lawyers but,
coming back to my comment about defence and offence, are you not
really putting forward now the defences that would be available
to a Member of either House which may be different from those
which would be available to a member of the general public, and
therefore is it not possible to frame it in a way where the wider
defences are recognised? That would seem to be one possibility,
but would that be a practical option?
(Mr Davies) I imagine that the instructions to the
draftsman could deal with that. I am not a lawyer myself and possibly
Mr Rippengal has further comment on the drafting of the legislation.
(Mr Rippengal) I suppose it all depends how the thing
comes out in the wash. We have only seen a consultation paper
from the Home Office about the possible offences. It might be
possible to embrace Members of both Houses in it and give them
special defences. I am rather doubtful about that. My own view
is that it is difficult to have an all-embracing offence which
really is well tailored enough to meet the case of Members of
both Houses, but you may well be right. It is always difficult
to take a very hard line, until you actually get down to trying
to work out the instructions for a Bill.
172. In neither House is it an offence to have
interests. The offence is to advocate (serving in the Commons,
I do not know about in the other place). So you are not committing
an offence by having a declared interest. You are committing an
offence if you do not declare it and the rules relating to advocacy
in relation to your interest are different from those in general,
so surely it must be reasonably straightforward to make some sort
of provision for that.
(Mr Davies) I think that is a matter for the Committee
probably to decide, whether the view we have expressed is
173. But you are the experts.
(Mr Davies) We have expressed a view that it would
be better to draft legislation which was specifically aimed at
the position of Members of Parliament but would include in that
offence the member of the public who is offering the inducement.
174. May I take that a little bit further? If
I were Chairman of a large company, on the face of it any payment
made to me in connection with my work by an outsider can comparatively
easily be outlawed if it is done with a view to influencing the
way I were to discharge my duties as Chairman of the company,
because that on the face of it would be something which is not
a proper exercise by me of my fiduciary and contractual duties.
When one goes across to the position of Members of Parliament,
it is not quite so straightforward because certain payments can
be offered maybe to Members of Parliament in connection with the
very fact that they are Members of Parliament without being improper.
Payments for lobbying for example, are one particular topical
example. So to try and apply across the board the same approach
which is applicable in my instance to the Chairman of a company
to Members of Parliament might be thought to be an unsatisfactory
course. Is that the sort of point you have in mind when you say
that there should preferably be different legislation?
(Mr Rippengal) In a word, yes, my Lord Chairman.
175. I think the rules of lobbying must be much
stricter in our House than they are in the other place. Lobbying
would count as advocacy and therefore would be precluded.
(Mr Davies) In the House of Lords that is also the
case. The register of interests contains three categories. The
first category is registerable parliamentary consultancies. The
second is being a director or employee of a company engaged in
parliamentary lobbying, and the third is financial interests which
Members of the House have outside their membership of the House
of Lords. The first two categories do mean that those who hold
them cannot advocate or lobby.
Sir Patrick Cormack
176. But it is a voluntary register, is it not?
(Mr Davies) Not for the first two categories. The
first two categories are mandatory.
177. So could a statute therefore cover the
parliamentary position by including special provisions based on
our own codes which effectively are codes of conduct?
(Mr Davies) Yes, I think it could.
178. Can I ask for your help on two points you
mention in paragraph 24 of your memorandum on the question of
bribery? Six lines into it, having set out that there are in your
view in reality only two options, you say: "At best, however,
the House would hardly be in a position to deal with a corrupt
Member as effectively as such behaviour deserves (even if the
House were given power to suspend members)." Pausing there
for a moment, in your view should the House be given power to
(Mr Davies) The future of the House of Lords at the
moment is uncertain.
179. As matters are now.
(Mr Davies) As matters stand now, yes, I think there
is no reason why it should not be given that power.