Joint Committee on The Draft Corruption Bill Report

4  Clause 12: parliamentary privilege

Prosecuting MPs and peers for corruption

101. The draft Bill intends that Members of Parliament and peers should be subject to the same corruption law as everyone else. We support this objective. No witness argued that MPs and peers should be immune from the corruption laws. The Standards and Privileges Committee of the House of Commons, the Constitution Committee of the House of Lords and the (Wicks) Committee on Standards in Public life support the proposal. [121]

102. Corruption in Parliament has not wholly escaped punishment in the past. Indeed Members have been punished by expulsion for accepting bribes since at least 1667.[122] The leading authority on parliamentary procedure, Erskine May, says:

"The acceptance by a Member of either House of a bribe to influence him in his conduct as a Member, or of any fee, compensation or reward in connection with the promotion of or opposition to any Bill, resolution, matter or thing submitted or intended to be submitted to the House or to a committee is a contempt. Any person who is found to have offered such a corrupt consideration is also in contempt".[123]

103. We understand that the exclusion of MPs from the statutory offences of corruption is a result of historical accident rather than deliberate policy. This is because the statutory offences have been interpreted to mean that neither House is a public body for the purposes of the Public Bodies Corrupt Practices Act 1889 and a Member of Parliament is not an agent for the purposes of the Prevention of Corruption Act 1906.

104. In 1992 one Member of Parliament was prosecuted for the common law offence of bribery. The judge ruled that MPs were subject to the common law offence.[124] In that case it was alleged that the MP accepted bribes from a company in his constituency "to show such favour as might be within his power as a member of Parliament" to the company and its directors in relation to their business and contracts with British Rail. The case never came to a full trial because in a separate trial of the company executives the judge ruled that there was no case to answer and the Crown later offered no evidence against the MP.

105. The Committee has received little evidence that any MPs and peers have avoided prosecution for corruption either because of their status or because parliamentary proceedings cannot be questioned in court.[125] As the Joint Committee on Parliamentary Privilege noted in 1999, "there are very few instances of corruption involving Members of Parliament".[126] The Attorney General could not identify any occasions in which MPs or peers have escaped prosecution because of the provisions of Article IX of the Bill of Rights 1689.[127] We have been told there have been very few cases in other comparable jurisdictions.[128]

106. The draft Bill does not explicitly mention MPs and peers but its intention and effect are clearly to include them within the new corruption offences. This is the case irrespective of whether Clause 12 is in the Bill.

107. The purpose of Clause 12 is to remove any evidential difficulty in prosecuting MPs and peers. We understand that in many situations MPs and peers could be prosecuted for corruption without any evidence of proceedings in Parliament being adduced in court. Nonetheless there may be circumstances in which a conviction could not be obtained without such evidence. The 1999 Joint Committee on Parliamentary Privilege expected that there would be few prosecutions of Members for corruption and that in only a small proportion of such cases would it be necessary to question proceedings in Parliament.[129] The Attorney General and Director of Public Prosecutions, respectively, told us:

"I think there would be cases where without Clause 12 it would not be possible to bring a prosecution because evidence of a key ingredient of the offence would not otherwise be available" [130]

"I can imagine that it would be very important in order to secure a conviction of a corrupt elected Member to be able to adduce in evidence things that he or she had said, either in a Committee like this or in the House itself, as evidence of whatever the bribe had been intended to achieve".[131]

108. On the issue whether Clause 12 is necessary, we refer below to Australian and American cases. The Clerk of the House of Commons told us:

"It can .... be argued that the fundamental requirement for the successful prosecution of the proposed new criminal offence of corruption will be clear evidence of the existence of a corrupt bargain and that Clause 12 will not materially assist the prosecution in meeting that requirement…..[but] I accept that some hypothetical cases of corruption by Members of Parliament would be, at least, extremely difficult to prosecute as criminal offences without encroaching on the Bill of Rights".[132]

109. There is experience of legislators being prosecuted in other countries without impinging on freedom of speech in Parliament. We were told that in Australia, evidence of parliamentary proceedings could be cited in court as long as the participants in those proceedings were not exposed to criminal liability.[133] In several instances Members have been prosecuted for corruption-type offences without reference to parliamentary proceedings and without it being thought that the prosecution was hampered thereby.[134] In the United States of America, convictions of legislators for corruption have been obtained by concentrating on the improper agreement to do something rather than on the act which was done as part of proceedings in Congress.[135] In both countries the development in the law has resulted from the decisions of courts in actual cases; in Australia this has led to Parliament enacting a statutory definition of parliamentary proceedings.

110. The leading American case on this point was described to us in these terms:

"In US v Brewster a U S Senator was charged with accepting a bribe to be influenced in his performance of official acts in respect to his action, vote and decision on legislation. The Supreme Court decided that while a prosecution might not inquire into legislative acts or their motivation, taking or agreeing to take money to act in a certain way when participating in a legislative act cannot itself be a legislative act. Taking a bribe is, obviously, no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as part of or even incidental to the role of a legislator. Nor is inquiry into a legislative act or the motivation for a legislative act necessary to a prosecution … It is the taking of the bribe, and not the performance of any illicit compact that is the criminal act under the statute. The speech or debate Clause interposes no obstacle to this type of prosecution. The guilty act is the acceptance of the bribe, and that is complete without performance".[136]

Other matters on Parliamentary Privilege

111. In bringing forward this measure, the Home Office has relied on the recommendations of the Joint Committee on Parliamentary Privilege in 1999. It has sought, in the explanatory notes, to portray Clause 12 as the inevitable consequence of that Joint Committee's recommendation. The Lords Constitution Committee, responding to our invitation to submit evidence, said "We endorse the conclusions of that Joint Committee, which form the basis of Clause 12 of the draft Bill, that Article IX of the 1689 Bill of Rights should be disapplied in respect of allegations of corruption against members of Parliament".[137] We do not read these recommendations as showing that it was the intention of that Joint Committee to allow witnesses before select committees to be questioned in court on what they had said in Parliament.

112. No reference is made in the Home Office documents to the other recommendations of that report. One key recommendation was that parliamentary privilege should be put on a statutory basis on the lines of the Australian Parliamentary Privileges Act. As the Clerk of the House put it:

"I would find it somewhat easier to accept the inclusion in the Bill of a provision derogating from the principle of freedom of speech in the case of alleged corruption by a Member of Parliament if it were being presented in the context of a wider statutory restatement of parliamentary immunities and the scope of parliamentary freedom of speech".[138]

113. We note that the Joint Committee itself contemplated the Government adopting a selective approach to implementation of its recommendations and said:

"The recommendations of the Joint Committee requiring enactment by legislation should be included in a new Parliamentary Privileges Act. These recommendations will stand enactment by themselves, but if so enacted the results will be an uncomfortable mixture of modern statute and ancient learning".[139]

114. We consider it would be better if the Joint Committee recommendations were followed and a Parliamentary Privilege Bill dealing with all these matters were brought forward.

Freedom of speech in Parliament

115. The aim of parliamentary privilege has never been to protect Members from the consequences of their own wrong-doing. Article IX of the Bill of Rights protects freedom of speech so that Parliament can debate all matters fully without the participants being in fear of adverse consequences. The most obvious examples include:

·  A witness before a select committee who might be deterred from explaining the full details of a matter

·  An MP asking a question about a sensitive constituency matter

·  A Minister replying to a debate about how a particular matter had been handled.

116. We understand that Clause 12 as drafted would apply to all parliamentary proceedings including:

a) an MP's words about his own conduct

b) an MP's words about another MP's conduct

c) an MP's words about a non-Member's conduct

d) a witness' words about his own conduct, the conduct of an MP or someone else.

117. In all these instances there is a public interest in ensuring that the fullest facts are disclosed in Parliament and that no one - witness, Member or minister - should feel inhibited by the prospect of what he or she says being subsequently questioned in court. The importance of such freedom of speech in Parliament was recognised recently when the European Court of Human Rights rejected an action against the UK in respect of what an MP had said in debate.[140] That case concerned an MP who in 1996 initiated a debate on municipal housing policy. He referred to anti-social behaviour and cited the name and address of a constituent. As a consequence the constituent received adverse press coverage. Her application to the European Court of Human Rights alleged that the absolute parliamentary immunity which prevented her from taking legal action in respect of statements made about her in Parliament violated her right of access to court under Article 6 and her right to privacy under Article 8 of the Convention. In another case the Court had stated that while freedom of expression was important for everyone, it was especially so for an elected representative of the people, who represented the electorate, drew attention to their preoccupations and defended their interests.[141] In the case of A v. UK the Court noted that most if not all signatory states to the Convention had in place some form of immunity for members of their national legislatures and that the immunity afforded to MPs in the UK was in several respects narrower than in certain other countries. The Court stated: "The absolute immunity enjoyed by MPs is moreover designed to protect the interests of Parliament as a whole as opposed to those of individual MPs".

Resolving the dilemma

118. There are thus competing interests between convicting the corrupt and protecting freedom of speech in Parliament. There is a high public interest in protecting the frankness of witnesses giving information to parliamentary committees. On the other hand there is also a high public interest in preventing parliamentary proceedings from being corrupted in ways which are immune from censure in the courts or in Parliament itself. Parliament should be aware of the implications of legislating in ways which make it appear as though the only place where one could lawfully act in corrupt ways is in the Houses of Parliament.

119. There may be different ways of resolving these competing interests in respect of, on the one hand, witnesses before select committees and, on the other, Members and peers. The Liaison Committee of select committee chairmen has expressed concern about the effect of Clause 12 on witnesses.[142] Witnesses are usually unfamiliar with Parliament, they are expected to answer questions put to them and they only appear before select committees. We are inclined to accept the argument that they are more likely to be inhibited in their evidence by the prospect of it being questioned in court.

120. We have therefore considered the following possibilities:

·  Accepting Clause 12 as drafted

·  Rejecting Clause 12 completely

·  Excluding witnesses from Clause 12

·  Confining Clause 12 to essential cases.

Accepting Clause 12 as drafted

121. The Explanatory Notes on the draft Bill state that Clause 12 implements a recommendation of the Joint Committee on Parliamentary Privilege in 1999. In weighing up four options for dealing with bribery of MPs - proposed by the Home Office in its 1996 consultation paper - that Committee accepted both that MPs and peers should be brought within new statutory corruption offences and that there should be a derogation from Article IX to secure convictions in rare cases where there was insufficient evidence from other sources. The Committee appear to have accepted that the first objective could not be secured without the second. Our evidence on that point is more mixed (see paragraphs 107 to 110 above). But the Joint Committee's consideration of the waiver of Article IX is expressed entirely within the context of bribery of MPs - it did not contemplate withdrawing the protection of Article IX from witnesses before select committees.

122. The case for Clause 12 as drafted - allowing any proceedings in Parliament to be cited in court in a corruption case - was put by the Attorney General:

"Clause 12 does go further than simply dealing with a Member, I agree. It would cover a case where somebody comes before a committee such as this or another committee, who perhaps comes forward as an expert to come and tell the Committee that there is not a problem from a particular scientific process, or something of that sort, and has in fact been bribed to say the opposite of the truth. What would happen at the moment would be that the evidence that had been given to the select committee could not be brought into court to prove that this person had been corrupted into giving that false evidence. I would add that it is obviously a policy matter but I think you can argue very strongly that freedom of speech is actually enhanced by having a limited exception so that you can be satisfied that people who are speaking are speaking from the heart, honestly and genuinely, and not speaking because they have been paid secretly by some interested party to do so".[143]

Rejecting Clause 12 completely

123. The principal arguments put against Clause 12 were that:

·  Clause 12 is not essential -- the aim of prosecuting MPs and peers for corruption could be achieved by other means and

·  any erosion of privilege will inhibit freedom of speech in the chamber or other parliamentary proceedings.

124. Ways in which the purpose could be achieved by other means are described in paragraph 109 above and whether Clause 12 is essential is dealt with in paragraphs 107 and 108 above. On the dangers of eroding freedom of speech, the case for rejecting Clause 12 completely was put largely by Mr Harry Evans, the Clerk of the Australian Senate, and Sir William McKay, the recently-retired Clerk of the House of Commons:

"Any dilution of Article IX in the United Kingdom would weaken its status as a statement of major constitutional principle".[144]

"It would still allow one side or the other in court to ask a Member what he meant by what he said. I think that is too high a price to pay for the remedying of a very, very serious but very rare mischief".[145]

"If the protection of Article IX is broken into, your position is very much weaker than if you have untouched protection".[146]

"If the words or actions in proceedings of a member or a witness could be used to prosecute the member or witness or some other person, proceedings in Parliament would no longer be free from all external interference. Members and witnesses would be aware that what they say and do in the course of proceedings could be turned against them or other persons in some future criminal investigations, and therefore would not speak freely".[147]

"[If you ask me: Would Members be less willing to speak freely in Parliament?] I think they would. The Member who has the floor does not need to be within a million miles of corruption he just needs to be talking about it or an instant case or a case that comes on next year, a constituency problem which at the time the Member speaks he has no conception will fetch up in the courts".[148]

Excluding witnesses from Clause 12

125. One way of narrowing the effect of Clause 12 would be to exclude from it anyone other than MPs and peers - bearing in mind the overt rationale for the Clause is to overcome difficulties in prosecuting MPs and peers. The Liaison Committee have suggested that the balance of public interest between securing convictions for corruption and protecting freedom of speech in Parliament lies differently with outsiders giving evidence to committees than it does with MPs and peers.[149] We note that while witnesses are the main category of non-Member who would be caught by Clause 12, it also includes outsiders submitting petitions concerning private Bills and parliamentary staff directly engaged in proceedings.

126. The case against excluding one category of people was set out by Sir William McKay:

"My objection to this method of approach is not lessened by the narrowing, because all you have done is you have highlighted those who should be protected and who are not going to be protected. MPs and Peers were protected, and now they are not".[150]

127. The Attorney General told us that there would be advantages for prosecutors if witnesses before select committees could be prosecuted for corruption offences on the basis of their evidence to committees. He also said it would be helpful if Clause 12 could be extended not just to corruption cases but also to fraud cases.[151]

Confining Clause 12 to essential cases

128. We have also considered confining Clause 12 to the immediate situation the Bill was originally designed to overcome: the prosecution of MPs and peers for corruption. Leaving aside for the moment the issue of witnesses before committees, the Clause as drafted would enable MPs and peers to be questioned in court about what they had said in Parliament in respect of at least three scenarios where it was alleged that the person involved in corruption was:

·  the individual MP or peer whose words were in question

·  another MP or peer

·  another person who was not an MP or peer.

129. We have already referred, in paragraphs 107 and 108 above, to the question whether it would be necessary in order to secure a conviction of an MP to cite in court what they themselves had said or done in parliamentary proceedings. We have also heard conflicting evidence about whether a court would admit evidence as to what an MP or peer had said about another person whether or not an MP or peer. The Director of Public Prosecutions told us:

"I cannot see how that would ever be admissible in a criminal trial. Saying things about people is not evidence. Facts are evidence. I think that particular bit actually over-states the difficulty. If a Member of Parliament had commented in a debate on an individual, that is highly unlikely to be evidence relevant to the commission of a criminal offence".[152]

130. In arguing against Clause 12, however, Sir William McKay gave an example of how this might apply in practice:

"The consequences of partial withdrawing of the protection of Article IX would very, very rarely fall on the corrupt Member of either House. They would be much more likely to fall … on the Member who has got a corruption case going on in his constituency, nothing to do whatever with Parliament, and that Member makes a contribution to debate and either by accident or design says something about the case … I would imagine any defence counsel would be anxious to throw a little smoke around and ask for the Member's attendance to discuss what it was he said, how he knew it and what his motives were. This is, it seems to me, exactly what the Bill of Rights is intended to prevent happening. The Member himself is not corrupt but having lost the protection of Article IX he or she is asked to explain themselves before the courts".[153]

131. We have heard there is some uncertainty and that it would be up to the judge in particular cases to decide (on the basis of the relevance of evidence) whether a Member should be called to be questioned on what he had said. This uncertainty goes to the heart of the issue of freedom of speech: would a witness before a committee or a Member raising a constituency case in debate be inhibited from doing so by the possibility that they might be questioned in court on why they had said it? A very recent example of what can happen in practice was drawn to our attention by the Clerk of the Australian Senate: in that country, during the trial of a Member of Parliament for corruption, he was questioned about statements he had made in Parliament - while the appeal court held that the questioning had been in breach of the Australian Parliamentary Privileges Act, this had not resulted in a miscarriage of justice.[154]

132. The DPP told us that Clause 12 could be amended:

"It certainly could be drafted more narrowly. It could, for instance, be limited to cases where the defendant is the elected representative, because here this could be evidence in a quite different case against somebody who is not elected, and that would be one limitation that could be placed on it. Obviously it could be limited more than it currently is. It is quite a wide provision at the moment".[155]

Conclusion on Clause 12

133. The choice is between accepting Clause 12 as drafted and adopting a modified form of protecting parliamentary proceedings from consideration in the courts. There are arguments in favour of either course, but we do not consider that the law should be left as it is now in Article IX. We have already set out the opinion of the Director of Public Prosecutions that it is almost impossible to conceive of situations when comments made by MPs or peers in Parliament about third parties could be admissible in evidence in any event. However, given that some people express uncertainty on this, and given also that the DPP has told us this Clause could be narrowed, there are some advantages in following that course. The weight of evidence we have heard is against the inclusion of Clause 12 as drafted. We are persuaded that some changes in the exclusion of parliamentary proceedings from consideration by the courts has to be accepted if the prosecution of an MP or peer for corruption is to be achieved.

134. We therefore recommend that Clause 12 be narrowed. This would apply only to the words or actions of an MP or peer in a case where he is the defendant. This is in line with the recommendations of the 1999 Joint Committee on Parliamentary Privilege. We also recommend that, to the extent that the words or actions of an MP or peer are admissible for or against him, they should also be admissible for or against all co-defendants in respect of corruption offences based on the same facts. So the words of an MP could be used for or against a non-Member who was a defendant in the same trial.

135. In relation to witnesses and other Members, however, we conclude that the balance of public interest lies with protecting freedom of speech in Parliament. We recommend that Clause 12 be redrafted on the lines set out below (with new words in italics), subject to further drafting advice:

"No enactment or rule of law preventing proceedings in Parliament being impeached or questioned in any court or place out of Parliament is to prevent any evidence of words spoken, or acts performed, by a person alleged to have committed a corruption offence as a Member of either House of Parliament, being admissible -

a)  in proceedings for that offence against that person; or

b)  in proceedings for a corruption offence which arises out of the same facts.

121   Ev 172 DCB 35; Ev 158 DCB 24; Ev 157 DCB 23 para 8 Back

122   For a recent account of the history see Oliver & Drewry in Conduct Unbecoming Ch 6 Parliament and the Law relating to Parliamentary Standards Back

123   Erskine May, 22nd edn., Butterworths, 1997, p. 112 Back

124   R V Greenway. See Public Law April 1998. Back

125   Q233 (Sir William McKay) Back

126   para 140 Back

127   Q547 (Lord Goldsmith) Back

128   Q260 (Sir William McKay) Back

129   para 168 Back

130   Q562 (Lord Goldsmith) Back

131   Q101 (Sir David Calvert-Smith) Back

132   Ev 134 DCB 5 para 10 Back

133   Q239 (Sir William McKay) Back

134   Ev 132 lines 49 and 50 DCB 2 (Harry Evans) Back

135   Q248 (Sir William McKay) Back

136   Ev 45 DCB 11 para 26 Back

137   Ev 158 DCB 24 Back

138   Ev 134 DCB 5 para 7 (Clerk of the House) Back

139   HL Paper 43-1 (1998-99), HC 214-1 (1998-99) page 3 Back

140   A v UK application no 35373/97 - judgment of 17 December 2002. Back

141   Jerusalem v Austria 40 ECHR, 2001-II Back

142   Ev 175 DCB 36 Back

143   Q551 (Lord Goldsmith) Back

144   Ev 131 DCB 2 lines 10 and 11 Back

145   Q266 (Sir William McKay) Back

146   Q273 (Sir William McKay) Back

147   Ev 13 DCB 2 (Harry Evans) Back

148   Q268 (Sir William McKay) Back

149   Ev 175 DCB 36 Back

150   Q287 Ev 52 (Sir William McKay) Back

151   Q569 Ev 93 (Lord Goldsmith) Back

152   Q112 (Sir David Calvert-Smith) Back

153   Q234 (Sir William MacKay) Back

154   R v Theophanous [2003] VSCA 78 (20 June 2003) Back

155   Q105 (Sir David Calvert-Smith) Back

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