Memorandum from the Committee on Standards
and Privileges (DCB 35)
1. The draft Corruption Bill, presented
to Parliament on 24 March 2003 as Cm 5777, raises several issues
of interest to the Committee on Standards and Privileges. In particular,
the scope of the new corruption offences it creates may have implications
for the House's arrangements for investigating complaints of breaches
of its Code of Conduct, and the provision that would allow proceedings
in Parliament to be questioned in court proceedings on the offences
to be created has implications for the privileges of the House.
2. In view of the possible implications
for the arrangements for investigating complaints about the conduct
of Members, a responsibility the House has entrusted to the Parliamentary
Commissioner for Standards, we have consulted him in the course
of preparing this memorandum.
3. The Bill, if enacted along the lines
of the published draft, would abolish the existing common law
offence of bribery, and existing statutory corruption offences.
It would create three new statutory offences, of general application,
corruptly conferring an advantage;
corruptly obtaining an advantage;
performing functions as an agent
4. The proposed new offences are of general
application. The provisions would therefore apply to Members as
to all other citizens, thus fulfilling the objective of the Joint
Committee on Parliamentary Privilege of ensuring that Members
fall clearly and unambiguously within the scope of the criminal
law on corruption.
5. We support the proposition that Members
of Parliament should be subject to the law on corruption in precisely
the same way as it applies to others. Indeed, given that the antidote
to corruption is good governance, we believe it is vital that
Members are, and also demonstrate themselves to be, above corruption.
Central to public confidence in their elected representatives
must be a perception that they put the public interest first and
foremost, ahead of any private interest. Our approach to the proposals
in the draft Bill is guided by these over-riding principles.
6. The House of Commons has for centuries
recognised the corrosive nature of corruption: as long ago as
1695 it passed a Resolution against offering bribes to Members
and it has punished severely Members who have accepted them. More
recently, it has agreed a Code of Conduct,
through which it makes clear that it expects Members, in all aspects
of their public lives, to recognise their public duty to uphold
the law and observe high standards of personal conduct. The requirements
of the House, summarised in the Code and the Guide to the Rules,
go far beyond mere compliance with the letter of the criminal
law. Complaints that Members have failed to comply with the requirements
are investigated by an independent officer, the Parliamentary
Commissioner for Standards. If they are substantiated, the Member
concerned is liable to be punished by the House for his or her
7. We have no reason to believe, from the
small number of prosecutions
and from the pattern of complaints received about their conduct,
that corruption involving Members of Parliament has hitherto been
a problem of any significance. This belief is reinforced by the
recent comment of the Committee on Standards in Public Life:
"We endorse the view that standards in the
House of Commons are generally high, and that the overwhelming
majority of members seek to, and in practice do, uphold high standards
8. If the draft bill is enacted in its present
form, we envisage (and hope) that cases where the possibility
of corruption arises will continue to be very rare. However, the
broader definition of corruption offences adopted in the draft
Bill makes it possible that some breaches of the Code previously
considered to be purely disciplinary matters for the House to
deal with may also need to be viewed as possible criminal offences.
Appropriate procedures will therefore need to be in place to deal
with this eventuality.
9. The possibility of criminal liability
does not prevent the House from imposing an appropriate disciplinary
penalty for conduct in breach of the Code: criminal and disciplinary
proceedings are not mutually exclusive, and the House could, if
it wished, decide to take action if breaches of the Code had been
revealed irrespective of whether criminal proceedings are initiated,
or their outcome.
A concern of ours is, therefore, the relationship between the
proposed legislation and the House's arrangements for enforcing
standards, which apply whether or not the acts complained of might
also be corrupt in law.
10. We believe that criminal proceedings
should take precedence over the House's disciplinary proceedings.
This means that the House should take steps to minimise the scope
for its own activities to prejudice criminal proceedings. However,
we would be concerned if the Commissioner and the House were required
routinely to stay investigations for more than a brief period
(a requirement that arises only very infrequently at present)
while the possibility of criminal proceedings was explored, and
in some cases completed. Delays of significant magnitude could
seriously hamper the disciplinary process, particularly towards
the end of a Parliament.
11. The House's standards system is essentially
complaints driven. Where a complaint is made to the Parliamentary
Commissioner for Standards alleging criminal conduct by a Memberwhether
involving an offence under this Bill or any other offenceand
the complaint is neither malicious nor frivolous, we would expect
the Commissioner to report the facts to us with a recommendation
that the matter be referred to the police for further investigation.
This would be in line with the second recommendation of the Sixth
Report of the Committee on Standards in Public Life.
12. Where the Commissioner becomes aware
that police inquiries are in hand in relation to a matter in respect
of which he is already investigating a complaint, we would expect
him to recommend that his inquiry be suspended at least until
the police investigation has been completed and a decision taken
on whether to charge the Member. Such action would minimise the
scope for our own investigations to prejudice the question of
criminal proceedings. Other than in exceptional circumstances,
we would expect to agree to such a request as a matter of course.
13. It is possible that in the course of
investigating a complaint the Commissioner may come across evidence
suggesting to him that a criminal offence may have been committed.
In this case, we would expect him to inform the police, having
first consulted us. Once again, we would normally expect to suspend
our own investigation at least until a decision had been made
on whether to initiate criminal proceedings.
14. Where a case under investigation by
the Commissioner becomes the subject of a police investigation,
the question arises as to the extent to which the police should
have access to the Commissioner's records. In this context, we
note that the House expects Members to cooperate fully with the
Commissioner in his investigations and has punished failure to
do so without reasonable cause. We would not want any arrangements
for disclosure to prejudice Members' willingness to co-operate
in the future.
15. In any case where the Commissioner suspects
that criminal offences may have been committed, he will need to
pass on some information, including a copy of the original complaint,
to enable the police to start an investigation. In principle,
we would have no difficulty with the Commissioner also making
available to the police documentary material in his possession
which had been voluntarily given to him in support of the complaint
and, with the agreement of the Member concerned, material which
he or she has supplied, or which has been supplied in his or her
support, provided the relevant source also agrees. Other material,
such as the Commissioner's notes of telephone conversations, meetings
or interviews, should not in our view be made available. In any
event, we understand that the evidential value of material such
as the Commissioner's notes of conversations would be limited,
as it will not have been obtained under caution.
16. The interests of fairness create a presumption
that the Commissioner will also make available to the Member,
at his or her request, material that he has disclosed to the police,
or which falls within a category that he would have been willing
to disclose, had they sought it.
17. We will, however, need to give careful
consideration to the precise details of both what might be made
available, and in what circumstances, to minimise the risk to
Members' future cooperation with the Commissioner's inquiries.
Whatever was to become the practice, the Commissioner would ensure
that Members and others were made aware of it. The Commissioner
will continue to seek to develop appropriate policy proposals
in the light of discussions with others who have a policy interest,
including the police and the Crown Prosecution Service. As the
underlying issues are matters that relate to criminal offences
in general, and are not restricted exclusively to the offences
to be created by the draft Corruption Bill, this work will continue
irrespective of what further progress the bill makes.
CLAUSE 12 OF
18. Clause 12 of the draft Bill would have
the effect of making evidence admissible in proceedings for a
corruption offence notwithstanding Article IX of the Bill of Rights
1689. This Article prevents proceedings in Parliament being impeached
or questioned in a court of law. In setting the provisions of
the Article aside in relation to any proceedings for a corruption
offence, not just those involving Members, the draft clause is
significantly broader in scope than the provision the Joint Committee
on Parliamentary Privilege envisaged. It concluded:
"Members of both Houses should be brought within
the criminal law of bribery by legislation containing a provision
to the effect that evidence relating to an offence committed or
alleged to be committed under the relevant sections shall be admissible
notwithstanding article 9. . . .
. . . We anticipate there will be few prosecutions
of members, because we believe there are few instances of corruption
of members. We anticipate, further, that in only a small proportion
of any prosecutions will it be necessary to question proceedings
in Parliament. Thus, to allow evidence to be given as we recommend
will involve only a minimal encroachment upon the territory safeguarded
by article 9. The occasions when a court will be called upon to
question a parliamentary proceeding will be rare indeed.".
19. Article IX, and the privilege which
it confers, does not exist in isolation; it is designed to ensure
that the legislature can exercise its powers freely on behalf
of its electors, with access to all relevant information.
Central to this provision is the protection of freedom of speech
for all who participate in proceedings in Parliament.
20. As the Home Secretary pointed out in
his evidence to the Joint Committee on Parliamentary Privilege,
the body of Parliamentary privilege is not, and never has been,
fixed and immutable.
Provided that the primary policy objectives we have set out above
remain unaffected, we are not in principle opposed to changes
in the scope of the privilege conferred by Article IX, if these
are necessary in the wider public interest. However, each specific
proposal for change needs to be examined carefully on its individual
merits, and an appropriate balance struck as to where the overall
public interest lies.
21. In the following paragraphs, we see
how the provisions of Clause 12 of the draft Bill might work.
22. Clause 12 of the draft Bill would undoubtedly
reduce the scope of Article IX. On the other hand, the proposed
change may make it easier to prosecute (or, in some circumstances,
defend) corruption cases where proceedings in Parliament provide
relevant evidence not available elsewhere. For example, if a Member
had denied in the House ever meeting a particular person, and
the Crown presented clear evidence to the court that he or she
had done so, the admissibility of the Hansard record as evidence
might have a significant impact on the proceedings.
23. As we have stated earlier, we believe that
Members of Parliament should be subject to precisely the same
criminal law on corruption as everyone else. Given the unique
nature of offences of corruption, and the implications for public
confidence in elected representatives and the interests of good
governance, it is in our view essential that there are no artificial
impediments to the prosecution of Members for corruption offences,
or of others in cases where Members are involved. As the Joint
Committee on Parliamentary Privilege put it:
"Several witnesses thought it wrong that
article 9 should appear to have the effect of protecting corrupt
members: in no way did this serve the interests of free speech.
A former Leader of the House of Commons, Lord Newton of Braintree
`My general view is that while there are clearly
good and sufficient reasons for the privileges of members of Parliament
in relation to freedom of speech . . . it is extremely difficult
to see why [members] should enjoy the same privileges in respect
of bribery and corruption . . . one cannot envisage an argument
that says it is necessary for a member to take a bribe or to be
corrupt in order to do his job as a member of Parliament'."
24. We agree. We also note that, whether or
not proceedings in Parliament are made admissible in criminal
proceedings in corruption cases involving Members, they can be
drawn on by the Commissioner and the House in relation to investigating
and adjudicating on complaints about Members' conduct. We believe
that it would be difficult to justify such a substantial distinction
between their treatment inside and outside the House if this had
a material effect on a decision about whether to launch a prosecution
for corruption, or on the outcome of a case.
25. In our view, the balance of advantage in
relation to corruption cases where Members are involved rests
with removing the protection of Article IX. We do not believe
that making proceedings in Parliament admissible as evidence in
such cases risks prejudicing the underlying freedoms which Article
IX protects. We therefore support the provisions of Clause 12
to the extent we have outlined.
26. However, Clause 12, as currently drafted,
would cover all cases involving corruption offences, whether or
not Members are involved. A wide range of proceedings in Parliament,
beyond those relating to cases in which Members are involved,
including those in select committees, might be affected. So far
as proceedings in select committees are concerned, the Chairman
of the Liaison Committee has written to the Prime Minister setting
out its concerns about the broad scope of Clause 12, and has copied
this letter to the Joint Committee.
55 Report of the Joint Committee on Parliamentary Privilege,
Session 1998-99, HC 214-I, paras 166-169. Back
The Code of Conduct together with the Guide to the Rules relating
to the Conduct of Members 2002, HC 841 (2001-02). This replaced
the original version, approved by the House on 24 July 1996 (HC
688 (1995-96)). Back
The Joint Committee on Parliamentary Privilege could find only
a single case, that of Mr Harry Greenway MP in 1992, who was acquitted
of corruptly receiving benefits from a company for using his influence
as a Member on its behalf. No proceedings in Parliament were relevant
to this case (see HC 214-I, para 136). Back
Eighth Report of the Committee on Standards in Public Life, Cm
5663, para 27. Back
Also, under the Representation of the People Act 1981, a Member
imprisoned for more than a year becomes disqualified from sitting
and the seat is vacated. Back
Cm 4557-I. Back
HC 214-I (1998-99) para 167-8. Back
See Erskine May, 22nd Edition, p 93. For a description
of what constitutes "Proceedings in Parliament" see
ibid, p 95ff. Back
HC 214-II (1998-99) Q 113. Back
HC 214-I (1998-99), para 149. Back