Letter from the Chairman of the Liaison
Committee to the Prime Minister (DCB 36)
At the Committee's meeting on 19 June, Sir George
Young, as Chairman of the House's Standards and Privileges Committee,
raised the issue of the implications for the House and select
committees of the draft Corruption Bill now being considered by
a Joint Committee of both Houses.
The Liaison Committee agreed that I should write
to you about the very great concerns we have about those parts
of the draft Bill which may affect the ability of the House and
its committees to operate unimpeded by the risk that witnesses
will be less than frank, whether in public or in private.
Our principal concern relates to Clause 12 of
the draft Corruption Bill, published by the Home Office as Cm
5777, which provides that, in respect of proceedings on the proposed
new corruption offences created by the Bill (replacing existing
statutory and common law offences) the protection offered to proceedings
in Parliament by Article 9 of the Bill of Rights will not apply.
The Explanatory Notes describes the Clause in
the following terms:
"This clause implements a recommendation
made by the Joint Committee on Parliamentary Privilege (HL Paper
43 and HC 214, March 1999, paragraph 167). Its effect is to make
evidence admissible in proceedings for a corruption offence (as
defined in subsection (2)) notwithstanding Article 9 of the Bill
of Rights 1689 which prevents proceedings in Parliament being
impeached or questioned in a court".
At the request of the then Home Secretary, Jack
Straw, the Joint Committee on Parliamentary Privilege, on which
I served, and which reported in 1999, considered the issues of
bribery of Members and the application of Article IX at some length
and considered a number of options for reform in the context of
a wide-ranging examination of all aspects of Parliamentary Privilege.
In the context of an over-arching recommendation that there should
be a codification through a new Parliamentary Privileges Act,
"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."
The Joint Committee in its Report recorded its
doubts about the extent to which the existing law on corruption
applies to Members of Parliament. In doing so it envisaged changes
specific to the position of Members.
The terms of the Explanatory Notes are, in my
view, misleading as they relate to Clause 12 of the draft Bill.
The provisions of the draft Bill differ significantly from what
the Joint Committee envisaged, in two material ways.
First, the proposed new statutory offences (set
out in Clauses 1-3 of the draft Bill) of corruptly conferring
an advantage, corruptly obtaining an advantage, and performing
functions as an agent corruptly, are to be offences of general
application. So these provisions would apply to Members as
to all other citizens, whether or not Clause 12 is included in
Second, Clause 12 as drafted applies to all
proceedings in Parliament relating to the proposed new corruption
offences, not just cases in which Members are involved. Members
and others could be questioned on what lay behind statements that
they had made, or evidence they had given. Evidence given by
witnesses to select committees would fall within its scope.
During discussion at the Liaison Committee,
several senior Members from both sides of the House expressed
very grave concern about waiving Article IX not just in relation
to Members but in relation to witnesses before Committees. The
Explanatory Notes on the draft Bill contain nothing to justify
extending the scope of Clause 12 so far beyond the intentions
on the Joint Committee on Parliamentary Privilege.
The Liaison Committee is also concerned that the precedent that
would be set by this significant incursion into the legal protection
of proceedings in Parliament raises the possibility that the Government
may seek to extend it beyond corruption offences, with the result
that evidence to committees could be used in criminal proceedings
in relation to other crimes also. To extend the provisions so
far beyond what the Joint Committee proposed in 1999 would raise
the possibility that evidence to committees might be used in relation
to crimes other than bribery.
The Liaison Committee is convinced that it would
be wrong to enact the draft Corruption Bill in its present form.
It should be modified to bring its provisions truly in line with
the intentions of the Joint Committee in 1999. If the House is
to be effective in carrying out its functions of holding the Executive
to account and scrutinising its activities, it is vital that witnesses
are full and frank in their evidence. At present, they know that
whatever they say cannot be questioned or impeached in any court
here. In its present form the draft Corruption Bill would undermine
that essential principle in relation to the offences it creates.
As a former member of the earlier Joint Committee
I should emphasise that it made its proposals in relation to the
bribery of Members in the context that there ought to be a Parliamentary
Privileges Act. Personally I much regret this recommendation has
not yet been implemented.
Copies of this letter are being sent to Lord
Slynn as Chairman of the Joint Committee on the draft Corruption
Bill and to David Blunkett, Peter Hain and Sir George Young.
The Rt Hon Alan Williams, MP
24 June 2003
Letter from The Prime Minister to the
Chairman of the Liaison Committee
Thank YOU for your letter of 24 June, in which
you raised two points on the draft Corruption Bill.
First of all, I should say that I welcome your
interest in this Bill and am also very grateful to Lord Slynn's
Committee for the close attention they are giving to it. The area
under discussion is clearly of constitutional importance and rightly
of concern to Parliament, and it is proper for it to receive close
Parliamentary scrutiny and questioning. I will be particularly
interested in what Lord Slynn's Committee have to say on this
issue. This is a Bill published for pre-legislative scrutiny,
and the Government will carefully consider the Committee's report
before introducing any revised Bill to Parliament.
To turn to the detail of your letter, I agree
that the new offences of corruption will apply equally to Members
as to other persons. The Government thinks this is the right policy.
Corruption is a crime which always involves two persons (at least)
and it would seem odd to have separate offences for Members, on
the one hand, and for those non-Members who might bribe them,
on the other. I do not think the Bill proposes anything different
from Nicholls on this point. The Nicholls Committee said "Members
should be, and should be seen to be, subject to the same criminal
offence as everyone else" (Paragraph 174 of their report).
The Nicholls Committee were also clear that
Article IX of the Bill of Rights should be set aside in any prosecution
where Members were involved. They did not address the question
of witnesses before Select Committees, but it seems to us even
more important to rule out the possibility that non-Members might
evade conviction for corruption because of privilege. MPs have
their own disciplinary system, but a non-Member might well escape
entirely. Lord Slynn's Committee has heard the Attorney General
on this point and I agree with what he said:
"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 openly, and not speaking
because they have been paid secretly by somebody".
I do not think that the Nicholls Committee envisaged
the changes to the law of bribery as coming forward in the same
package as a wider Bill on Privilege. Indeed, having set out proposals
which they recommended for inclusion in a new Parliamentary Privileges
Act (not including bribery), they added "We assume our recommendations
on bribery will be incorporated in the proposed criminal legislation
. . ." (Paragraph 377).
Nevertheless, as I said above, this is an area
which we will need to look at very carefully in the light of the
report from Lord Slynn's Committee before revised proposals are
introduced to Parliament.
Finally, I also note your concern that this
approach could be applied to crililinal offences other than corruption.
That is not the Government's current proposal. If the Government
made such a proposal, it would bring the matter before Parliament.
I am copying this letter to Lord Slynn, David
Blunkett, Peter Hain and Sir George Young.
9 July 2003