Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 840 - 859)



  840. What happens when you get to the next stage? Supposing they initiate a prosecution. The jury may have to decide, among other things, whether what was done was in accordance with what was usual or acceptable in the House or perhaps even specifically whether there had been an infringement of the rules of the House, in which case it might be necessary in some form either to produce evidence before the jury or in some other way to give them guidance. I wonder whether you have any views on how that can be done?
  (Sir Gordon Downey) If that occasion arose, then I think you are quite right. It would seem to me that it should be possible for the courts to seek guidance if they need it. The defence could call me, for example, to give evidence for them if it turned on the interpretation of the House rules. On the other hand, I am not sure that I explained myself too clearly, but I do feel, the more I think about this, that the likelihood of this tension arising is really fairly remote and that, if allegations of corruption have got to the point of surmounting the hurdle to criminal prosecution, almost certainly maybe 100 per cent or maybe 99.9 per cent of the cases will either involve an infringement of the code, by bringing the House into disrepute, or of the rules involving paid advocacy.

Lord Mayhew of Twysden

  841. On the same subject, is the start point for your line of thinking that it would be wrong for any offence that is created to catch Members of Parliament for corruption/bribery to be capable of being committed, notwithstanding that what is alleged is within what is permitted by the House? In other words, if the House regards through its clear rules what is alleged to have been done as being within the rules of the House, then it would be wrong and perhaps even absurd for a criminal offence to impute criminal liability. Is that a start point in your mind?
  (Sir Gordon Downey) Yes, I think that is a start point.

  842. You speak of the threshold for a criminal prosecution, but it is the case, is it not, that the threshold for a criminal prosecution is the same as for any other prosecution, namely, there has to be a realistic prospect of conviction in the assessment of the prosecuting authority? There has then to be, in order to arrive at that judgment, an assessment of whether or not the thing is going to be within the rules of the House or may be within the rules of the House. In those circumstances, would it be right to describe it really as a classic case for the Law Officers' consent to be required for any such prosecution?
  (Sir Gordon Downey) I am not enough of an expert and certainly not a lawyer to be confident about my reply on that, but it did occur to me that, if a prosecution required the authority of the Law Officers or the DPP, then I would feel more confident that administratively it would be possible for the prosecuting authorities to take into account what was acceptable to the House.

  843. Perhaps this is not for you but there is a contrary feeling of course that, oh well, the Law Officers are Members of Parliament and are members of the government. The fact that they are Members of Parliament of course gives strength to the proposal that I am making. I do not know whether you have had an opportunity to read the evidence that the Lord Chief Justice gave?
  (Sir Gordon Downey) Yes, I did, but some time ago.

  844. Did you read anything in it which caused you to disagree with his assessment that, though nothing is perfect, the consent of the Law Officers is a valuable precaution?
  (Sir Gordon Downey) I saw value in it although I take the point that you make, that there is, I suppose, a public perception that the duality of his role, both as a Member of Parliament and as a Law Officer, creates unwarranted suspicion.

  845. How far does one take concern for unwarranted suspicion in the case of—?
  (Sir Gordon Downey) In my own case, I do not have that concern and I think it would be a sensible precaution.

  846. Because—is this right?—the risk of getting into the stress and tension, to use your rather modest words, that would arise if the courts had to determine whether the rules of the House of Commons had been breached is less likely to be encountered if the prosecution decision has been informed in that manner?
  (Sir Gordon Downey) Yes.

Sir Patrick Cormack

  847. Do you think the Speaker can have a role in that as well, advised appropriately by you and the clerk? I ask this on the proposition that it really is manifestly absurd to have any man or woman prosecuted for a criminal charge if the rules of the House have not been breached and that is the substance of the charge.
  (Sir Gordon Downey) I would be a little more concerned about the public perception in that case. I think there is a long tradition which many people understand, though some may not, that the Law Officers are in some way very distinct from membership of the House when they are acting in their legal capacity; whereas I think the Speaker necessarily is always going to be seen as the Speaker of the House of Commons. I do not think there is any duality of role there which would in a sense give her the public perception of independence, which I think would be really very important here.

  848. And yet the impartiality of the chair is its greatest defining characteristic.
  (Sir Gordon Downey) Yes, but that, if I may say so, is an impartiality as between the different sides of the House. On the other hand, she is a very strong advocate for the House as a whole and I think there might be a perception that she, above all as it were, would be rooting there for her Members—I think quite wrongly, of course, but nevertheless I think public perception is important in this area.

Mr Tyler

  849. I wanted to pursue the threshold issue a little bit further and who triggers which route should be taken. It seems to me that your recommendation is both attractive and ingenious where the issue is clear cut and I accept that we are all labouring to some extent under the difficulty that we have had very few cases, thank God, and therefore we may be unduly influenced by our recent experience; but of course at least one of those cases was a multiple allegation. I do not know the details and I do not think that matters but you can imagine the circumstances where there were ten different allegations made, of which nine were thought to cross the threshold of the House's rules and only the tenth seemed to be potentially a matter for the courts. How would you see your recommendation working in those circumstances?
  (Sir Gordon Downey) Given that the tenth is going to be by far the most serious allegation, I think my view would still be that the House's investigation of the nine should await the outcome of the court case on the tenth.

  850. The whole process in the House would be frozen until the outcome of the tenth was known?
  (Sir Gordon Downey) It would be frozen, yes. It would be in suspense while the court case was being heard.

Lord Wigoder

  851. Is it your proposition that the corruptor should be subject to the same position in relation to the rules of the House as the corruptee? In other words, if a person offers money to a Member of Parliament and does so quite corruptly, with totally corrupt intent, so that the Member should do something to his advantage, would it be a defence for the corruptor to say in the course of the trial, "I have just discovered that, according to the rules of the House, this was not so improper after all"?
  (Sir Gordon Downey) I think even under the present rules of the House a corruptor could be said to be in contempt and therefore has offended against the rules of the House. In practice, very little can happen because the House does not have within its armoury the sort of sanctions which can be imposed against a corruptor from outside the House. Expulsion and suspension do not apply. The House gave up its other sanctions a long time ago. I think my answer would be that I would take the view that it would be no defence for a corruptor to be able to say, "There is no specific rule in the House affecting the payment by outsiders to Members of Parliament and therefore I am in the clear". I think it does breach the rules of the House and would be a contempt.

Lord Mayhew of Twysden

  852. This is rather an interesting question, is it not, because, in the scenario posed, here is the would be corruptor finding, not necessarily to his chagrin, that he is not a corruptor because the rules of the House do not make it an offence. If they specifically made it not a breach of the House, if they okayed it, it would be quite wrong surely for anybody to be convicted?
  (Sir Gordon Downey) I think perhaps I have not answered the previous question in a sensible or helpful way. The rules of the House apply to Members and do not apply to people outside. Therefore, I do not think a person outside, the potential corruptor, could pray in aid that the rules of the House do not cover him. They do not cover anybody outside. Therefore, if the payment of a bribe to anyone, whether it be a Member or a non-Member, under whatever law of bribery is involved, is a corrupt action, I do not think he can claim any defence by reference to the rules of the House.

Sir Patrick Cormack

  853. Bribery is bribery, is it not?
  (Sir Gordon Downey) Bribery is bribery.

  854. If a Member legitimately declares an interest and that is registered with you and accepted by you, then he quite properly cannot be prosecuted for that interest and nor can the person who pays that amount of money which he has declared be prosecuted either. If it is done without the rules of the House, without telling you, without registering it, then it does indeed become a potential act of bribery, presumably?
  (Sir Gordon Downey) Although it might be an issue in some cases, I do not think registration is necessarily the determining issue here. Whether or not a payment was registered, there are requirements, for example, that, broadly speaking, a Member who receives any sort of benefits from outside, whether he registers them or not, may not then promote the interests of that outside person or body in the House. Therefore, it would be a contravention of the House rules if he did so. If at the same time that series of actions—the payment to the Member and the action by the Member of the House—were seen to be a corrupt action so far as the prosecuting authorities were concerned, whether or not it had been registered would not come into it.


  855. Can we try and tackle this from a slightly different angle, because I confess I am not at all clear in my own mind precisely what is the role of the House's own rules in relation to a criminal charge of corruption. As I understand it, you favour what I might call a universal offence. That is to say, that the criminal offence should be drawn in terms which are equally applicable to Members and to everyone else. Have you had an opportunity of considering the draft Corruption Bill that the Law Commission have recommended and, if so, do you have any comments on the suitability of that proposed line of approach which of course, as you know, involves, as a necessary ingredient, corruption?
  (Sir Gordon Downey) I have looked at it but not with an expert eye. My lay reaction was that it seemed a very sensible approach, except that I have this reservation that I mentioned earlier about whether or not authority should be required to bring a prosecution by the DPP or the Law Officers. That was my general reaction: that this was a sensible approach. On the other hand, certainly I would be interested and perhaps the Committee would be interested if Mr Pleming were given an opportunity to speak, because I know he has looked at the Law Commission report quite carefully and I would value his opinion on that.

  856. Can we tempt you, Mr Pleming?
  (Mr Pleming) I am keeping very quiet because I feel ill equipped to comment on much of what has been discussed so far, in so far as it covers procedures of the House. What worries me is that the problems arise when there are parallel complaints, parallel investigations. If it has been accepted that there is criminal jurisdiction to deal with either bribery as a crisp offence or corruption as a slightly less crisp offence, then particularly with the introduction of the word "primarily" in the Law Commission's report, I find it both interesting and worrying as to how one is to determine, for a Member of Parliament, whether something has been done or not been done primarily, because of the possibility of an advantage. I was thinking, for example, of the situation where there was a complaint to Sir Gordon with nine or ten components. One, two or even three of them could be within the very wide definition of corruption; perhaps one of those three within the tighter boundary of bribery. Would the House be content that the criminal jurisdiction should take over for those offences, but that the public concern expressed in the other matters should be left on hold for a very long period of time, perhaps during the duration of the House's sitting? It seems to me that there are very difficult political questions or policy questions to deal with when looking at parallel procedures and parallel complaints. I have noted also that the Law Commission talks in terms of what is corruption without referring specifically to an essential ingredient of dishonesty but only "dishonesty" in a much wider sense of "it must be wrong" or "that is not the kind of thing that decent men and women do". When the Home Secretary gave evidence to this Committee, he, like many others I suspect, was tempted to gloss over the problem, so that dishonesty and corruption were being used in the same sentence. It may be that the touchstone for a decision to prosecute is the hint of or at least the possibility of a dishonest motive. Bribery is easier to recognise or define than is corruption. My concerns are not so much how the Law Commission has framed the offence but how the House with its particularly special and unusual role is to deal with corruption. There is no equivalent in government that I can find and there is no equivalent in the professions. You, as Members of the House of Commons and the House of Lords, make the law. You are at the top of the tree. Perhaps there are higher expectations, but if there is going to be a parallel criminal procedure with the House doing nothing in the meantime then the perception of the public may be that there is a Member sent off on that route, where they remain for some time, but the problem is not being addressed. Could I pick up one point on "filtering". It seems to me that there is a central problem if criminal guilt or innocence is to be affected by compliance or non-compliance with the rules of the House. I can see how that must be at least a starting point, but who is to determine that issue, and when, seems to me to be a particular problem. Is it to be determined by the filtering officer, such as the Attorney General, who decides that there should be a prosecution, or is it to be determined by Sir Gordon or by the House or a committee, and when is it to be determined? Is it to be determined before a prosecution commences? What if the person who is eventually prosecuted disagrees with the opinion that there has been a breach of the rules of the House? Is that question to be determined by a jury? Sir Gordon accepts that he could be called to give evidence, that is inevitably so, but one would again have the slightly peculiar position of a jury trying compliance with the rules of the House. Having spent some time trying to understand the rules of the House, I do not wish that on anybody, let alone on a jury which has not received any in-House training or in-House experience. The rules seem to me to be an improving set of standards, certainly a set of standards which change during time. That is my contribution so far. I see real areas of concern which this Committee perhaps should grapple with and resolve.

  857. Perhaps I may follow up this point. Would it be possible to achieve the result of taking into account the rules of the House, without in fact making the corruption offence different in the case of Members from what it is in the case of others?
  (Mr Pleming) It would either have to be a different definition of corruption—which I would have thought was impossible, unless there is added in the specific ingredients of intent or dishonesty, which is not in the Law Commission's recommendation—or the position is to be tailored for the peculiar situation of Members of Parliament by inserting a specific defence along the lines that corruption cannot be established if the act described is consistent with the standards of the House. That may produce a fair result, but again I would be interested in the public perception where the House is itself describing, and can describe on a day-to-day basis, what is or what is not acceptable conduct. Persons outside the House might say, "Well that looks acceptable to you, but as far as we're concerned, it's unacceptable". So all I see at the moment—I am no use to this Committee at all—are difficulties rather than solutions. I am becoming more and more intrigued as to how the Committee is to resolve those difficulties—save by doing one of two things. First, is to say that the criminal route is the only route (subject to a filter, which I can see is a very sensible suggestion of the Lord Chief Justice). Subject to that filter, it is for the police authorities, the prosecuting authorities, and they make their own decisions. The defence can run any defence it wishes to run. The prosecution takes its own course. Second, is to say that corruption is to be dealt with in-House, it is to be dealt with as part of the discipline of Members, with all the problems that that involves. It is the overlap which I find quite difficult.

Sir Patrick Cormack

  858. So you have no solution which you unequivocally commend to the Committee?
  (Mr Pleming) Not at the moment. I am listening. As I say, as well as researching I am listening to the discussion this morning. As soon as one allows compliance with the rules of the House to be determinative of guilt, then it seems to me either that that issue has to be decided in the House, in some lead-up to a prosecution, and/or maybe again decided by a jury or by magistrates.

  859. Would it not be the trigger to prosecution that it is judged by the Committee to whom Sir Gordon reports, that the rules have been breached?
  (Mr Pleming) That then means that one would have had a trial in-House for breach of the rules. If that is the route which is taken, then my concern would be not so much double jeopardy but rather prejudicing either the prosecution or the defence. This is particularly so as this House—understandably—favours transparency and public debate, so that you would have, in the glare of television cameras, or at least reproduced in some form, a full and sometimes heated discussion as to whether or not a person's behaviour is acceptable. If that is going to be tried again, it would be quite difficult.

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