Parliamentary Privilege Minutes of Evidence

Examination of Witnesses (Questions 860 - 879)



  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.

Lord Merlyn-Rees

  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 afterlife—I mean when he no longer is an MP—or 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.

Mr Tyler

  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 Parliament—who, 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 rare.
  (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 is—I am sure this never ever happens, but I am using this to illustrate the point—that 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 position.

Lord Merlyn-Rees

  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, criminal—in other words, should the Member be tried by the courts rather than dealt with by the House? That is why I used this illustration.

Mr Williams

  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 process—Sir Gordon can deal with this better than I—is 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 role—it 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 system—the 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 was—and really I do not want to go too far along this line—whether 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, because—and maybe this is not the right moment to deal with it—there 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 result—because this is what the public perceive, has the result been arrived at in a manifestly fair way—having 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 conclusion—the 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 consent"?
  (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 route—I 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 House—the 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 review.

  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 involved—it almost certainly does on the basis of the Demicoli decision.

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