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Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 819 - 839)




  819. Sir Gordon and Mr Pleming, may I welcome you both to this meeting of the Committee and express the Committee's appreciation at being able to take advantage of your expertise in this area of the Committee's work. In the course of the discussion on which we are about to embark, I and other members of the Committee will ask questions but please will either or both of you respond according to whether each of you thinks you can assist us? May I make one general comment before we do start? On this Committee, we are concerned with general principles, not with the details of individual cases, except in so far as they may exemplify a point of general application. As a Committee, we shall abjure any looking into or reopening or revisiting the rights and wrongs of particular cases which may have been the subject of a report from you, Sir Gordon, in the past or the subject of advice from you, Mr Pleming. We are concerned rather with what general conclusions can properly be drawn from past experience. Before we begin, is there anything that either of you would like to say to us?
  (Sir Gordon Downey) Thank you, my Lord Chairman. Mr Pleming may have something to say by way of introduction but, for my part, I shall be perfectly happy to go straight to questions.
  (Mr Pleming) My Lord, I have nothing to say by way of introductory remarks.

  820. Sir Gordon, you are aware of the evidence we have had on the possible application of the law of bribery to Members. In your very helpful memorandum, you are unequivocal in stating that bribery should be dealt with by the courts. One of the matters we have to consider is this: if the police and if the courts were to have jurisdiction in respect of allegations and charges of bribery against Members concerning acts done in one of the Houses, what effect might that have on the rules of the two Houses for self-regulation, not least on the Code of Conduct and the disciplinary procedures? Do you think there are problems there and that they are surmountable?
  (Sir Gordon Downey) I think there are bound to be problems but I also believe that they are surmountable. It seems to me that if bribery were made a criminal offence which could be enforced against Members as against other people, clearly this would have a consequence for the way in which disciplinary matters were handled by the House because that type of case—which, if I may say so, I think would be an extremely rare type of case—would be excluded from the jurisdiction of the House. On the other hand, I think the other types of breaches of House rules would be unaffected. Although there would be a certain amount of overlap between cases of criminal corruption and breaches of the House, I do not think that would create insuperable difficulties. When I say that there would be overlap, it seems to me almost by definition that any criminal offence of corruption would, under the Houses' current rules—this would not always have been the case—almost certainly also offend against the Code of Conduct and the rules of the House. I say this would not have always been the case because, in some respects within the last couple of years, the Houses' rules have been strengthened in two ways in particular. Firstly, there has been introduced the Code of Conduct which has a general clause in it requiring that Members should not undertake any action which brought the House into disrepute, which of course is a very wide requirement indeed. The other one, which is more specific, is that the House has adopted a rule under which Members are prohibited from entering into any form of paid advocacy. I think that is particularly relevant to instances of bribery and does, in my view, mean that any criminal charge of bribery will almost certainly offend against or, in many cases, will offend against that particular rule of the House.

  821. Is this right: as you see it, in large measure, there will be overlap in this way, that there would be a criminally proscribed activity which would be amenable to police investigation and trial by the criminal courts. That area and indeed a wider area would be subject to the disciplinary processes of the House so that, for example, if a Member were subject to criminal investigation and conviction, it would still be open to the House to take disciplinary action against him. Is that the way you see it operating?
  (Sir Gordon Downey) Yes, it is. There are two points there which I think I would make. One is that one might think that this creates a form of double jeopardy and that, I suppose, is true. On the other hand, I do not think this is an unusual situation in the case of, for example, professional organisations which have their own disciplinary codes but nevertheless their members are subject to the criminal laws as well. I had a second point, but—

Sir Patrick Cormack

  822. May I just ask this for clarification? Is it your contention therefore, Sir Gordon, that if a Member is accused of this offence he should first of all be tried in the civil courts before Parliament even looks at it?
  (Sir Gordon Downey) Yes. That in fact was the second point and I am grateful to you for reminding me of it. It seems to me that, in these circumstances, this would be sequential and that, provided the potential criminality of the offence was recognised from the outset, as I think I have explained in one of my examples in my memorandum, my expectation would be that the House would stand back and allow the criminal charge to be handled first by the courts.

  823. As there is bound to be, for example, a case of double jeopardy, as you put it, whichever sequence is followed, what is the factor that convinces you that it is better to do it that way round rather than to have the House first look at the matter and, perhaps with your advice, determine whether it really is something that should be passed on to other authorities?
  (Sir Gordon Downey) I think one of my main concerns about that would be that, of the two processes, clearly the criminal process would carry more severe sanctions than the House process. I would be very concerned that the criminal process coming second would be in some way jeopardised or compromised by the process undertaken by the House in advance. It seems to me that, if the House had opined strongly that in their view very improper actions had taken place, this would be a very bad point from which the Member concerned would start his defence of the case in the courts.

  824. But it would almost inevitably follow, would it not, that if your prescription is followed, there could only be one penalty that the House could impose which would be expulsion if somebody had been actually found guilty in a criminal court of this offence.
  (Sir Gordon Downey) That of course would be a matter for the House to decide. I imagine that that is quite a likely consequence in the very rare case where this might happen. If a Member were convicted of a serious criminal offence and perhaps sentenced to a custodial sentence, then I think it would be for the House to decide whether this was a proper person to remain in the House.

  825. Just one final point on these questions: you have yourself used the expression "very rare" on two or three occasions. Are you quite convinced with your experience now in this new post that this is indeed something that is very rare?
  (Sir Gordon Downey) I am confident that it is a very rare occurrence and I think I would be confident that it would be even rarer if a change were made to make this type of offence a criminal offence. One thing I would like to add to that, if I may, is that I have seen it argued that, because it is likely to be so rare, is it really worth devising a new system to deal with it? My own view is that the infrequency of the offence does not really alter the strength of the case for this change for two reasons. One, I think there is a question of principle here, unless it is necessary for the proper discharge of the House's functions for there to be exceptions. I think, as a matter of principle, Members should be subject to the same criminal code as anybody else but there is another point which worries me deeply. I think perhaps I have not seen this argued so much in the evidence I have read. It is the question of the confidence which the public can have in the legislature. One of the most worrying examples which was quoted by the Nolan Report was the one which demonstrated the vast distance between reality and public perception of this area. I believe that in fact instances of bribery or corruption are very rare. On the other hand, the Nolan Committee quoted an opinion poll—admittedly in 1994—and 64 per cent of those questioned subscribed to the view that most Members of Parliament make a lot of money by using their office improperly. I think that is a devastatingly bad statistic and one which really is very unfair and very damaging to the democratic process.

Mr Michie

  826. Can I follow that up? If you asked the same person the question whether they make some money out of this corruption, they would say, "But it is not my MP". This is an interesting point. On this double jeopardy, I agree with you that the problem is once we start debating what this House or both Houses should do with a Member it could in fact compromise the court proceedings when and if the matter finally gets to court. I notice in your report that you have the power, if I understand it correctly, to make the judgment, if you get a letter from a member of the public, if it is picked up in the press, or from a Member, whether that matter is a matter of corruption or a matter of bringing the House into disrepute. Therefore, would you take the decision to refer it to the courts? I ask this question because of this double jeopardy. Once it goes to Committee, then it is open to public scrutiny and therefore could compromise the courts.
  (Sir Gordon Downey) No, I would not expect to have a hand in the sifting process. It seems to me that the authority I have in that respect is much more that of being able to sift out trivial, malicious or vexatious complaints and those I feel quite able to reject and not allow any further process to take place in the House. The advantage of that is that, by rejecting them at an initial stage, I can avoid conferring any privilege on the process from the outset. Here, we are talking about serious complaints involving serious allegations. In those circumstances, I would not see it as my role at all to act as a sift. Certainly, if there were a question of my having spotted that a complaint to me seemed to be potentially a criminal allegation, then my first recourse would be to the Committee and I would expect to discuss it with them. I might well make a recommendation to the Committee. Certainly if I thought that this should be handled by the courts, my recommendation to the Committee would be that they should agree with that course and I think almost certainly the Committee would agree.

  Mr Michie: That does mean of course that it is then the property of the House and therefore can be debated. This is a problem we have been wrestling with the whole time on this Committee.

Lord Wigoder

  827. You mentioned, Sir Gordon, that despite the element of double jeopardy, a Member of Parliament who was convicted could and should be dealt with, if desirable, by the House in addition to that for breaches of its own disciplinary rules. The same would apply equally, would it not, if a Member of Parliament were acquitted? It could still be referred back if it disclosed a prima facie breach of disciplinary rules, rather like a police officer who was acquitted of a criminal case.
  (Sir Gordon Downey) Yes, I think that is right. If the offence of bribery were not upheld, there may nevertheless be an offence against the rules of the House. For example, the House had been brought into disrepute even though it did not meet the criteria of a criminal offence. Indeed, I think the vast majority of breaches of the House rules will not be corrupt acts. On the other hand, from a charge of corruption if it happened in the courts, I can quite see that following an acquittal there may still be factors involved which the House would wish to take into account and perhaps exercise their own disciplinary processes on.

Lord Waddington

  828. You said I think, Sir Gordon, that it is very difficult, if not impossible, to contemplate a case where there would be an offence of bribery where there was not also a breach of the House rules. The contrary is also the case, is it not? It is very, very difficult to contemplate any case where there could be a conviction where there was not a breach of the House rules? Is that not right? There is a sort of symmetry here. The solution that you suggest is a very neat one because in fact the end result of the criminal case would actually depend on whether the Member had breached one of the rules of conduct of the House.
  (Sir Gordon Downey) I think that is certainly the case and I think I have drawn attention to this in my memorandum. I do envisage that, if allegations of bribery were taken into the courts, one would need to feel comfortable that the courts and the prosecuting authorities were going to take into account what was acceptable to the House. Otherwise, in my view, there would be no criminal intent. It seems to me that if the House has agreed rules under which, within certain limitations, Members may receive money and may offer advice and perhaps, within tight limits, can engage in a form of advocacy in the House, it would be a quite unreasonable double jeopardy if that type of action were found by the prosecuting authorities and the courts to be an action involving criminal intent.

Mr Williams

  829. Can you clarify something for me? Suppose you receive evidence from someone and it is clear they have not submitted it to anyone else—they stated it—and there was a prima facie case, to your mind, of criminal bribery. What would the process be then? You would not notify the Committee surely, because it is irrelevant if it is a potential breach of the law. Would you not go direct and refer the information and evidence to the police straight away?
  (Sir Gordon Downey) No, I would go to the Committee.

  Mr Williams: Why?

Sir Patrick Cormack

  830. Exactly; you are an Officer of the House.
  (Sir Gordon Downey) I think I do take that view. In a sense, I am an instrument of the House and, on disciplinary matters, I report to the Standards and Privileges Committee. It would be a very arrogant abuse of my power probably to decide that a complaint which had been made to the House in the form of myself should be channelled elsewhere for investigation without consulting the Committee first. The only exception to that, as I have mentioned earlier, is that, if I receive complaints which I regard as vexatious, malicious, trivial, then in those circumstances I think it quite reasonable that I should just reject them.

Mr Williams

  831. Your status in relation to the House when it was originally set up was partially modelled on the Comptroller and Auditor General, was it not? It is not my recollection that the C&AG and the National Audit Office would feel that they had to report to the Public Accounts Committee before they drew attention to the fact that they had come across what they regarded as corruption and improper practice in a case they were looking into.
  (Sir Gordon Downey) I speak with some authority in this matter because, as a former Comptroller and Auditor General, I recognise what you say. On the other hand, I think there is a slight misunderstanding here in that it was much more the recommendation of the Nolan Committee that there should be elements of the C&AG's role taken up when my appointment was made than was ever actually taken on board by the House. Following the report of the Committee on Standards in Public Life, the Nolan Committee, the whole of their recommendations were examined by an internal House committee and they determined my role in a way which did not really relate closely to the C&AG's role at all. The only point in common I think was that there was a clear intention from the start that I should act as an officer of the House but in an independent capacity.

  832. Having held both offices, do you feel it would actually have been better had they observed more precisely the recommendations of the Nolan Committee and made you more analogous to the C&AG? This is important to the Committee because we can make recommendations.
  (Sir Gordon Downey) I do not really think so. The way the role was created was really quite appropriate for the circumstances which I have to deal with. I do not feel the lack of any opportunities which had been open to me as the C&AG and which I could do with now.

Sir Patrick Cormack

  833. But surely, as the Comptroller and Auditor General, such malpractices as you might have felt obliged to report to the civil authorities did not necessarily involve Members of Parliament; whereas in this case any accusation would involve a Member of Parliament and therefore, as an officer of the House, you must report it to the Committee before going any further. We can certainly see that, if we followed your recommendations, many of the cases that were referred to the courts would in fact have come to you first. You would have made a recommendation that this was a case for criminal prosecution to the Committee; the Committee would have endorsed your recommendation and at that point the civil courts would take over. The Committee would hold back until the matter had been disposed of by the courts. That is correct, is it not?
  (Sir Gordon Downey) Yes. I think there could be instances either way. In fact, we have seen instances either way already. I note what you say about not going into particular instances but in this case I think it is quite a useful example. In the case of the investigation which I undertook into allegations against Mr Michael Howard, these were clearly allegations of bribery. In that case, the complaint was made to the House. Originally, it featured in some evidence which Mr Al Fayed tried to put to the Privileges Committee. Eventually, he constructed his supporting evidence and put that evidence to me. Following consultation with the Committee, it was decided that parts of these allegations fell within my remit, although allegations against ministers normally do not. That justified my investigating the case up to a point. That point would have been to establish whether there was any prima facie evidence of improper payments, in which case, had I decided that that was so, I think it would have been for the Committee then to decide what subsequent action should take place. One very real possibility I think would have been that the matter would have been handed over to the police. On the other hand, we have had a more recent case of an allegation of corruption against a new Member of the House which was made to the police and is still going through the processes of the police investigation and the courts. There was, at the same time, a complaint made to me covering the same subject. I brought this to the attention of the Standards and Privileges Committee and recommended to them that, since this was currently in the hands of the courts, they should await the outcome of the court action before—

  834. Those allegations relate to the activities of a Member certainly, but the alleged offences were committed before he became a Member, as I understand it.
  (Sir Gordon Downey) Yes and no. Some of the allegations related to actions before the election and some after. Certainly, if they had all been before, none of the issues would have fallen within my terms of reference anyway because I would only be concerned with his actions as a Member.

  835. If the law is changed, as you are advocating, it would presumably be possible for a Member to be charged with things without any reference to you?
  (Sir Gordon Downey) Yes.

  836. In one case, it could come through the sieve of the Committee, advised by you; in the other case, with precisely similar circumstances, you could have no cognisance of it at all.
  (Sir Gordon Downey) Absolutely, yes.

  837. Can I just ask you one final question on this? You talked about frivolous complaints and your duty there which the House gave to you and which you, very properly, exercise. Have you had a vast number of frivolous complaints against Members? Can you give the Committee some idea of how many?
  (Sir Gordon Downey) I do get quite a large number of frivolous complaints from members of the public.

  838. What sort of numbers are we talking about? 20 a week?
  (Sir Gordon Downey) No. One or two a week, perhaps, but I suspect Members of Parliament will be familiar with the type of correspondent I am talking about in many cases. These are people who are perhaps sincere but perhaps a little unstable.

Lord Archer of Sandwell

  839. Could I just be clear that I have understood you correctly, Sir Gordon? You said a few moments ago, as I understand it, that in deciding whether money was taken with a corrupt intention the prosecuting authorities and possibly subsequently the courts would have to apply, as a very important criterion, whether there had been an infringement of the rules of the House. If that is so, they may have quite specifically to decide whether there has been an infringement of the rules of the House. As I understand it, you are suggesting that, if there is a possibility of criminal proceedings, the House would not wish to proceed to decide that question; they would be content to leave it to the courts to decide. Have I understood you correctly so far?
  (Sir Gordon Downey) Yes. There is a problem here and I am not sure how serious a problem it is. It is certainly a problem in theory; I am not sure whether it is a problem in practice. You are quite right. My view is that there is only one way in which a single offence could be applied to Members, as distinct from an offence which might have to have special provisions to allow for their special position. This is that perhaps the only condition I would see to a single offence being satisfactory is this one that the courts and the prosecuting authorities should take into account what is acceptable to the House. The problem, if it is one, is how and who should decide what is acceptable to the House. The House rules have been drawn up by the House and were intended to be interpreted by the House. They were not intended to be interpreted by lawyers. They have not been drawn up in a legal form. Also, I do not think one would regard the interpretation of the House rules as entirely static, as this can vary over time. The House can put its own gloss on the rules in the form of comments on individual cases. It is a slightly evolutionary process. To that extent, if one were to hand the matter entirely to the prosecuting authorities to decide what is acceptable to the House, there may be a little stress and tension created there. I am not sure how that would be best overcome. It seems to me—and this brings me into slight conflict with the recommendations of the Law Commission—that the Law Commission, as I understand it, are recommending that leave to bring a prosecution should not require the authority of the Law Officers or of the DPP. I was slightly surprised about that because I thought it was different from the present position in relation to bribery. I also thought that that might create particular difficulties, or at least would add to the difficulties that I have already mentioned to you. It seemed to me that, if the authority of the Law Officers or the DPP were required, it would administratively be very much easier for account to be taken of what was acceptable to the House and, to some extent, the prosecuting authorities could, if they felt the need, seek advice on the subject either from me, from the Committee or from the House authorities in some form or another. I think that would be a way in which one could feel comfortable that they would be taking into account the House's current interpretation of its own rules. I said this seemed to me to be at least a theoretical problem and maybe a practical problem. I am not sure whether it is a practical problem because, as I have indicated earlier, I think the threshold for bringing a prosecution for criminal corruption is likely to be higher than the threshold for disciplinary offences of the House and, in almost all cases where a prosecution is being mounted for corruption, an offence of the House will have been committed. In practice, I do not think there would be too much of a problem.

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