Examination of Witnesses (Questions 860
TUESDAY 28 APRIL 1998
DOWNEY, KCB AND
860. Sir Gordon's Committee, of course, would
not meet in the full glare of television cameras, it would meet
in a rather quieter, sober, sombre way than that. I fully accept
that whichever route we go along there are many unsatisfactory
elements, and Sir Gordon's point at the very beginning about double
jeopardy accepted that too. I merely put it to you: would that
be a better trigger? I do not know, but I am inclined to that
view. However, I certainly have not made up my mind. I am very
perplexed about the whole thing. Above all, what I am concerned
about is being fair, making sure that those who do wrong do not
get away with it, but equally making sure that the freedom of
Members of Parliament is not impeded, and that the rights of their
constituents are not impeded either, by having Members suspended
for long periods and so on while criminal proceedings take place.
(Mr Pleming) It may be the solution, or at least the
salvation, is that this is very rare.
Sir Patrick Cormack: Absolutely.
861. Sir Gordon made the point at the very beginning
about public opinion polls and their views of what goes on in
Parliament. I simply observe, as a line into my questioning, the
point which has just been made that the general public would not
understand the distinction which is made between corruption and
what is allowed in the House, because what looks acceptable to
us certainly does not look acceptable to the general public, and
it would not look acceptable to juries, in my view. I try to find
a way through this chartless sea that we are sailing in. I notice
that in your evidence, Sir Gordon, you give two examples about
this and about how to deal with the distinction between disciplinary
procedures of the House and the common law. The first example
is "A Member is accused of bribery". In order to write
that you must have had in mind a particular case or examples of
Members being involved in bribery. I argue to myself that I can
go back 30-odd years in Parliament and can think of very few ways
in which one could be affected by a bribe. What do you have in
mind when you say that as an example "A Member is accused
of bribery"? What sort of thing could a Member do by receiving
money for a particular purpose in order to achieve a result?
(Sir Gordon Downey) I do not find it difficult to
think of examples. A Member might be bribed to change his vote
in a committee. A Member may be bribed to slander a business rival.
Somebody may pay a Member to slander a business rival under privilege.
In the case of Michael Howard, although this was rather a special
case because he was acting as a Minister, the allegation was that
he received a bribe to persuade him to appoint inspectors.
862. As a Minister?
(Sir Gordon Downey) Yes, as a Minister, so that may
be a rather special case.
863. If we are going to deal with bribery we
have to have examples of how bribery takes place. One can conceive
of it in local government where hands-on committees are dealing
with housing contracts, etc. Before we decide on how we see a
way through this problem which you have very clearly put to us
today, and we talk of examples of bribery, there are not very
many ways in which an MP can be affected by a bribe, are there?
(Sir Gordon Downey) No, I think that is right. That
is why I am confident that in fact the number of cases will be
very small. However, that I think cuts both ways in the argument.
It does mean that perhaps one is creating a possible means of
dealing with it which will be very rarely used, and one may argue
is it really worth the candle? On the other hand, if the capacity
to deal with it is there, if the requirement to use it is a very
rare one, it seems to me that that too has its advantages in not
making Members an exception to the rule of the land.
(Mr Pleming) Could I come in with a response. I have
found bribery and the behaviour of Members of Parliament very
difficult to put together. I have heard and seen, in the evidence
before the Committee, the suggestion that Members of Parliament
are powerless, are without any means of influencing. I am surprised
that that is the view of the House. I doubt if that is the view
of those who have elected their Members of Parliament. The example
which I found useful, to expose the difficulties, is the Member
of Parliament who has an interest in a particular area, government
policy is going this way or that way, and members of the business
community here or abroad could see some benefit if the Government
went in a particular direction or did not go in another direction.
That Member of Parliament may wish to put some pressure on a Minister
by writing a letter, by speaking to the Minister in one of the
corridors, by exerting what pressure a Member of Parliament can
exert, either directly or through a committee of which he is a
member. That Member of Parliament may exert that pressure in any
event, but if that Member of Parliament is then paid to exert
that pressure, either by cash, or by the expectation of reward
in the afterlifeI mean when he no longer is an MPor
by other rewards such as holidays or whatever, is that bribery?
That I find a very difficult example to deal with, but I should
have thought it would be "conduct unbecoming". So then
you have this difficult decision which I was trying to deal with
earlier: who decides that that should be a criminal prosecution,
or who decides that it should be a matter of internal discipline?
Perhaps that is not a useful response.
864. I think it is very useful, my Lord Chairman,
because I think we are now in much more realistic territory than
we are with the straight, easy, clear-cut case of bribery. Can
I ask you perhaps a slightly more complicated question and see
how you react to this. Of course it is not necessarily the promise
of cash changing hands which might be the improper influence.
For example, rather than promise it could be threat. It could
be an arms manufacturer saying to the constituency Member of Parliamentwho,
after all, has a constituency interest"We in the past
have contributed to the cost of your election expenses. If your
Select Committee pursues this particular line of inquiry, you
can say goodbye to any help in the future." Or it could be
a trades union saying, "In the past we've contributed to
your local party's campaign expenses, Fred, but in future if the
Select Committee is going to take that action, or the Minister
is going to take that action, you are Chairman of the Select Committee
or the key person ....." It seems to me that this is the
area in which quite properly the public have high expectations
of us. I think you are now leading us to an extremely important
area, because the straight bribe with actual concrete results
may be extremely difficult to prove, precisely because it is so
(Mr Pleming) Perhaps I could respond with another
example and make it even more homely. That is, that instead of
the pressure coming from outside Parliament, the pressure is coming
from inside Parliament, so the expectation isI am sure
this never ever happens, but I am using this to illustrate the
pointthat if a Member of Parliament, a backbencher, were
to act in a particular way, then the indication would be that
in the next shuffle of the Cabinet there would be a Government
865. Or the Shadow Cabinet.
(Mr Pleming) Or the Shadow Cabinet. yes. There would
be a position with money, the salary which goes with that position.
Are we moving then out of the political knockabout, political
reality, into the area of bribery or corruption?
Sir Patrick Cormack
866. You are then moving into the area, Mr Pleming,
where you could actually say an example would be if a Member is
told, "If you don't vote this way, regardless of financial
consequences, you'll jeopardise yourself". Or you can have
a constituent coming into the surgery, as they do regularly, and
saying, "If you can do this for me I'll vote for you, but
if you don't do this or you don't support the Fox Hunting Bill
I shall never vote for you again", moving towards the absurd.
(Mr Pleming) The reason I am using, as you describe
it, the "absurd" example is that it might not be perceived
as absurd from outside the House, but also it illustrates areas
of concern which I was talking about earlier. One is parallel
procedures, the other is the filtering process. Who decides, on
what authority, that a course of conduct is a matter of discipline
as opposed to being, or potentially being, criminalin other
words, should the Member be tried by the courts rather than dealt
with by the House? That is why I used this illustration.
867. Are we not in danger of pursuing a red
herring (if you pursue a red herring) on the issue of whether
corruption exists or does not exist? We are here to address the
problem that if it exists it has to be dealt with, and therefore
we have to make provision for it should it arise. We do not have
to prove that it has arisen. Can I therefore concentrate on one
point you make, because I think this is quite important to our
consideration. In your initial comments you referred to whether
we should deal with corruption in-House. It seems to me that it
is essential that we see whether we can eliminate that possibility
or not, because if we can eliminate it, our course of action thereafter
is made much easier. Mr Pleming, I apologise for having imposed
this upon you, but the reason I asked for you to be present today
is because I think you are in a unique situation; you are the
only person, to my knowledge, who has actually acted in the new
parliamentary arena since the Commissioner and the associated
process was introduced, and who is a practitioner in the courts.
You saw the processes of obtaining information in relation to
the Hamilton inquiry in which you were involved. What I would
like to ask you is this. In a quasi-judicial role or internal
judicial role, how do you think our Standards and Privileges Committee's
ability to obtain information and evidence compares with that
which is available in a normal action within the courts? It seemed
to me that in our hearing we were lacking the ability to go into
depths of evidence, particularly if we tried to pursue the hearing
further in the Committee after you and Sir Gordon had made your
report, which one would normally expect to be able to do in the
normal courts of the land. What is your view of this?
(Mr Pleming) It seemed to me that there were considerable
difficulties in two broad areas. The investigation processSir
Gordon can deal with this better than Iis dependent on
decisions of the Committee as to whether or not witnesses could
be brought before the House. It is dependent on decisions of the
Committee as to whether or not documents are demanded. Although
there was considerable co-operation, which I saw, and Sir Gordon
and I managed to acquire a considerable amount of information,
there may have been other avenues which would have been explored
by those who have powers to go in and search, or those who have
powers to go in and seize or those who have powers to go in and
take statements. There is an investigative roleit is difficult
to say that this one barrister and Sir Gordon and his secretarial
assistants were the equivalent of a police force.
868. May I say that that is precisely where
I felt there was a weakness at the heart of that hearing.
(Mr Pleming) That is one area. I am not sure if it
is a weakness. It is an incompatibility if you are going to try
to say that the committees of the House are a parallel to a criminal
systemthe process which I was involved in was inquisitorial,
it was a combination of investigation by Sir Gordon, followed
by some decision-making. It is not the equivalent of a criminal
court process. The other concern wasand really I do not
want to go too far along this linewhether or not a committee
with a political makeup, in a fairly small community such as the
House of Commons, is ideally suited to deciding whether or not
a fact is a fact. I am putting that baldly, but it is quite difficult
to present evidence to a body of persons who are not members of
a jury. Although we talk of being tried by one's peers, the advantage
of a jury is that one is not being tried by one's peers at all,
one is being tried by strangers. Whereas a committee may have
massive advantage in understanding disciplinary processes, I should
have thought that membership of a House committee was perhaps
a disadvantage when "trying" a case or carrying out
an investigation and reaching a conclusion, without having at
least one eye and one ear towards political pressures.
869. I want to take this point further. We have
a situation where I think we are agreeing that the comprehensiveness
of evidence is possibly, and probably, less within our internal
system than it would be in the courts. That raises the wider issue
of justice, whichever way it goes, whether it is in favour of
the Member of Parliament or against, because now, on a limited
area or a probably limited area of evidence, you are then judging
by different criteria, because we adopted the "balance of
evidence" tribunal criterion for deciding whether someone
was guilty or not, whereas in the courts, with the wider evidence,
you have a much stricter criterion of "beyond all reasonable
doubt". So it does seem to me that between the two there
are grave possibilities that the in-House system could be unjust
either to someone who is guilty or someone who is innocent, it
could bounce either way because of its inbuilt inadequacies.
(Mr Pleming) The immediate response is that you are
not comparing like with like. If you are saying that the Committee,
or Sir Gordon or any investigative body has a disadvantage compared
with a prosecution system or a court system, that is obviously
correct, because they are different. There are considerable advantages
as well, one of which is the advantage of in-House regulation.
It does not mean, though, that there is not a method of sorting
out those cases which should be determined in-House but by a different
system, becauseand maybe this is not the right moment to
deal with itthere comes a point when you, the House, have
to consider sanctions for misconduct. If it is going to be parallel
with a criminal process, and if in the courts an offence of corruption
carries a possibility of seven years' imprisonment and the House
of Commons or the House of Lords (although it may have access
to a power of imprisonment but never uses it) decides that it
wants to have an equivalent sanction, then you are beginning to
step very firmly into the territory of Article 6 of the European
Convention on Human Rights. At that point the House moves out
of regulation into punishment.
870. On the question of the justice of the resultbecause
this is what the public perceive, has the result been arrived
at in a manifestly fair wayhaving worked within the two
systems, which one do you think is more likely to lead to that?
Remember, we are talking here of corruption; we are not talking
about the general rules of regulation within the House, we are
talking about a very serious offence. Which is the more likely
to lead, in your opinion, to a just conclusionthe normal
court procedure or the process which you have just experienced
in the Privileges Committee?
(Mr Pleming) That is a difficult question, and very
difficult to answer, because again you are not comparing like
with like. If you start off in the criminal process you may or
may not end up with the right result, you may or may not end up
with a just result. If you are going down the inquisitorial road,
which is what the Committee resolved in the investigation in which
I was involved, it achieved, I hope, in so far as I had a role
in assembling evidence and testing it, a fair result. It is for
Sir Gordon, of course, to deal with the decision and the Committee
to deal with its decision, but if you are saying would a criminal
process have produced a fairer result, I do not know. It would
have produced a different result, a "criminal" verdict
one way or the other. It is an entirely different process. One
of the great differences is that you would not have had somebody
both investigating and deciding; you would have a process of investigation,
then a decision whether or not to prosecute, and then a decision
when that evidence is presented to the adjudicating body. My concern
about the Committee is that it does get a bit tangled up when
it is involved in both the process of determination and investigation.
871. Sir Gordon, do you wish to add anything?
(Sir Gordon Downey) Could I just add one or two points.
I agree with Mr Pleming entirely that in a sense some of the questions
are not comparing like with like. I believe that the investigative
resources which we have used have been appropriate for disciplinary
offences. These have been offences of conduct unbecoming. On the
other hand, I do not believe that they would have been rigorous
enough to achieve a standard of proof appropriate for a criminal
case, nor, I think, for a case in which the sanction was a criminal
sanction, maybe a custodial sentence. On the other hand, like
Mr Pleming, I believe that for the purposes for which we used
these procedures, they achieved a fair result. I would like to
add a further point, however, on the question of whether the internal
procedures can be appropriate for a criminal case. This is not
really at the investigative end but at the end at which the House
or a committee of the House has to take a decision. I believe
that the House is very well placed to deal with an investigation
concerned with disciplinary matters, but I do not think it is
well placed or well equipped to deal with serious questions of
reaching judgments or hearing appeals or whatever in relation
to criminal charges. There are several reasons for that. First
of all, a committee of the House is made up of busy people, they
are not well equipped to handle the masses of evidence which we
assembled and the even more evidence which we did not present.
They are not well equipped to handle that sort of complicated
case, with the best will in the world. Secondly, rightly or wrongly,
I do not think they will be regarded as a body which will be totally
impartial. I do not want to be drawn on whether this is rightly
or wrongly so, but I think that in terms of public perception
a committee is necessarily made up of politicians, the House is
a very adversarial place, but I do not think this problem is peculiar
to the House. I have been associated with a lot of self-regulatory
organisations. I was Chairman of FIMBRA, Chairman of the Personal
Investment Authority, I have been Appeals Commissioner for the
Association of Brokers and Dealers, I was a Complaints Commissioner
for the Securities and Futures Association. In all those cases
I think these bodies have been excellent at enforcing their own
disciplinary codes, but I would not back one of them to convict
one of their own members of an offence which carried a custodial
sentence, and I would not back the House of Commons in this either.
Lord Mayhew of Twysden
872. I am wondering whether we have not got
too hung up, and I put this in the form of a question to you.
Do you think that the anxieties which have been expressed to you
today are perhaps a trifle overstated when dealing with the question
of who shall decide whether the rules have been broken? It is
commonplace, is it not, that criminal charges are brought against
people from technical backgrounds? Manslaughter may be brought
against a surgeon. Conspiracy to defraud may be brought against
a financial adviser. The classical direction which used to be
given to juries in cases of this character used to be, "Members
of the jury, you make the standards." Of course, it was always
open to the defendant to say, "But look, this is commonly
done that we perform this operation in this manner or we take
this risk", or "Look, it's commonly done that I enter
as a financial adviser into the planning of my client" and
so forth, but at the end of the day surely the jury have to be
directed, "You make the standards, you take into account
what you have heard." There will often be conflicting professional
evidence in a case like that. No doubt there would be conflicting
evidence in the House of Commons in the case with which we are
dealing. Is it different in character from what I have described?
Should it, in the immediate context of Parliament, be so much
a problem that it should deflect us from legislating in this way?
(Sir Gordon Downey) I think you are right. I think
the problem is somewhat overstated. I would not necessarily have
reached the same view a few years ago. A few years ago one could
have seen distinctions drawn, or I could have envisaged circumstances
in which a prosecution would be mounted, for example, for bribery,
and the actions taken both by the briber and the bribee would
in fact have been actions which were not at variance with the
House's rules. After all, a few years ago, or before the current
code and the current explanation of the guide to the rules, it
was possible for an outside person or body to make a payment.
It has always been a matter of some doubt, but it could be argued
that it was possible for an outsider to make a payment to a Member
of the House to persuade him to take action in support of that
outsider in the House. Although the House in one or two cases
found that that was unbecoming, it also in those cases did not
really pin that decision on any breach of the rules. Therefore,
I think one could have envisaged circumstances in which, if there
had been a court case, they would have looked at the rules and
not found that this was a breach. I do not think that is likely
to happen now. That is why I said that I think the problem is
overstated, because I do believe that any action of that kind
in practice is going to involve a breach of either the Code or
the rules. So that I think the problem has been lessened and there
is less of a distance between what is acceptable in the House
and what is acceptable elsewhere in the courts.
873. If there is a marginal case brought forward
for the trigger decision, then that is where an informed operator
of the finger on the trigger will sensibly say, "I don't
(Sir Gordon Downey) I think so, yes.
874. I would like to move on now for a few moments
to matters other than corruption and bribery. One of the points
on which some concern has been expressed to us by some witnesses
who have given evidence concerns the disciplinary or contempt
procedures of the two Houses, which we have already touched on,
of course, particularly if non-Members are involved, and whether
they would today stand scrutiny under Article 6 of the European
Convention on Human Rights. Pausing there for a moment, do you
think the existing procedures could stand scrutiny, Mr Pleming
or Sir Gordon?
(Mr Pleming) Could I deal with it slightly differently.
My Lord Chairman, you have identified the key problem, and that
is when outsiders are involved. In so far as the House sets its
own regulatory standards, and one assumes that the House would
want to achieve the fairest standards that it could achieve, it
may be that Article 6 would not engage in controlling those disciplinary
standards. There is one observation by the court in the Demicoli
v Malta case which suggested that the key determinant was
that the journalist was not a member of the House of Representatives.
As soon as you either bring in outsiders to be tried for contempt
of the House or some other complaint of contempt, or you start
imposing the equivalent of criminal sanctions with loss of liberty,
of course it is very difficult to avoid the conclusion that Article
6 will be engaged. The immediate problem then is not merely the
absence of an appellate routeI was rather attracted by
the Lord Chief Justice's reference to the Judicial Committee of
the Privy Council, with or without assessors, with or without
membership of the Housethe first problem may be the lack
of an impartial tribunal under Article 6 to deal with the allegation.
In the Malta case one of the complaints was that the journalist
was being effectively tried by, amongst others, those whom he
had called "clowns"this was said to be the contempt.
Here you have Members of the House whose cases are being heard
by other Members of the House, but if the contempt of the House
is by an outsider it may be that there should be a determination
by an independent body such as Sir Gordon perhaps, although an
Officer of the House, or some other entirely independent body.
So the problems of non-compliance seem to start at a fairly elementary
level, and that is the absence of an independent tribunal. That
may or may not be corrected by the appellate process. If it is,
then I suppose I can see a need for an independent appellate process
at least to deal with questions of law, or as a form of judicial
875. Do you think it would be cured by an independent
appellate process, by a supervisory process?
(Mr Pleming) I would have thought the main concerns
would be cured by that, although that would not satisfy compliance
with other aspects of Article 6.
876. To whom do you think the supervisory appellate
right should go? Should it go to the courts, or a judicial committee
or some different and specially created body?
(Mr Pleming) That is answered perhaps by a policy
decision. At the moment it does not go to the courts. We have
the Al Fayed litigation which has been taken up to the Court of
Appeal. At the moment there is no judicial review determination
on the Committee's or Sir Gordon's determinations. If the policy
decision is that that situation is wrong and the House is prepared
to surrender to the court's determination of its decisions, then
there is an appellate route. If it is not to be that route then
I would have thought the suggestion that it should be the Privy
Council makes a lot of sense.
877. The position at the moment so far as Members
themselves are concerned is that the decision of the House is
final. Do you think that would stand scrutiny with Article 6 today?
(Mr Pleming) If Article 6 is applied to Members, in
other words extends to deal with a disciplinary process, I would
have thought not. I would have thought Article 6 would require
an independent tribunal to deal with the problem, that would probably
be either a special commission, or some form of outside body perhaps
chaired by a judge to determine the complaint.
878. Can I just press that one step further
because this is a legal question. Do you think Article 6 bites
on disciplinary processes?
(Mr Pleming) That is perhaps the most difficult question
so far. On my reading of the jurisprudence of Article 6, and it
is only three cases, Bendenoun v France (1994), Weber
v Switzerland (1990) and the Demicoli case, it would
seem not, but that is for the normal disciplinary case. The European
Court of Human Rights, so far as I am aware, has not had to tackle
the question of internal discipline for a House such as the House
of Commons which, potentially at least, carries the right not
only to expel but to imprison or to impose a fine, assuming that
power still remains although not used. I would have thought that
if I had to advise one way or the other at the moment I would
have said no, Article 6 does not apply to the internal disciplinary
process of the House of Commons.
Sir Patrick Cormack
879. Nor should it ever.
(Mr Pleming) That may be for others to decide. At
the moment my very tentative view and at least reinforced by the
absence of jurisprudence on the topic is that it does not apply.
It may well apply when outsiders are involvedit almost
certainly does on the basis of the Demicoli decision.