Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witnesses (Questions 100-119)


14 MARCH 2003

  Q100  Lord Campbell-Savours: How central is Clause 12, that being the clause that essentially we are discussing, Proceedings in Parliament, to the prosecution of a corruption? What scenarios have you considered? Could you perhaps give us an example where an offence would be committed but a prosecution perhaps would fail without Clause 12?

  Sir David Calvert-Smith: First of all, our experience is very limited. In my memory, only one MP has been prosecuted for bribery during my career at the bar—unsuccessfully.

  Q101  Lord Campbell-Savours: Which one was that?

  Sir David Calvert-Smith: It was the Member for Ealing, Harry Greenway. It was before either of our times, I should say. 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. I would have thought it was almost essential—and I believe other common law jurisdictions have found this—that the Bill of Rights has to be abrogated to the extent that to prove corruption offences against elected members one would have to breach parliamentary privilege.

  Q102  Lord Campbell-Savours: Perhaps the Greenway case makes the point because right across the spectrum in here, even amongst those of us who were hunting with the hounds, we could never understand why that prosecution had been brought. What I worry is whether we might find ourselves entering into prosecutions which we should not. I do not know if you are in a position to comment, but you can reflect on the case now.

  Sir David Calvert-Smith: I simply cannot remember the facts of that case. I was not involved as counsel. I just remember reading about it in the newspaper. There is always going to be a risk, and clearly MPs, who are public figures, are at greater risk probably than other members of the public of false allegations and attempts to belittle them, reduce their credibility and so on, from malicious people. So clearly there are risks. One of the risks can be overcome, I would say, by a consent provision, whether by the law officers or by the two of us, and the risk of over-zealous police officers on a crusade, which I think is your next point, would be very substantially reduced in Robert's case because he would be directing the investigation and would therefore have complete control over such officer. In my case I have to concede that the police have operational responsibility. They take advice, but they can take or leave that advice; I cannot direct them. So I accept that there is a potential risk there.

  Q103  Baroness Whitaker: It sounds as if there is less risk if the Serious Fraud Office has the responsibility than if the DPP has the responsibility.

  Mr Wardle: I think that is probably right, but that would only apply to an offence involving seriously complex fraud. In the case of a Member of Parliament where Clause 12 might be brought into play, it is probably unlikely that we would be looking at that. I do not know. I suppose there are circumstances where it could apply.

  Q104  Chairman: In this area perhaps one of the most important questions is whether Clause 12 goes too far. Even assuming it is necessary to provide an Act with something like Clause 12, is it too wide? Could we get away with a narrower provision which would reduce the anxiety which some people would certainly feel?

  Mr Wardle: It applies, of course, only to an offence of corruption under the Bill.

  Q105  Chairman: The Clerk of the House in his evidence, for example, has said that you could draft this more narrowly. Do you have any comment on that?

  Sir David Calvert-Smith: 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.

  Q106  Mr Stinchcombe: Do you think it should be a criminal offence for a Member of Parliament, for example, to solicit payment to ask questions or make speeches or vote in a particular way? If it should be a criminal offence, do you need to have something like Clause 12 in the Bill in order to prosecute for it?

  Sir David Calvert-Smith: Yes, I do.

  Lord Waddington: I do not quite understand that.

  Q107  Lord Campbell-Savours: Was that an answer to the first or the second question?

  Sir David Calvert-Smith: It was yes and yes, but cannot conceive of us prosecuting a case—I am sure we have never done so before, or almost sure—unless this is done in secret. If there is not secrecy, then it is hard to see how an offence is corrupt. If an MP were to stand up and say, "I have asked for . . . " then the likelihood of a jury convicting that MP of corruption, I would have thought, would be small, whereas if it turns out later that the MP has asked a question and secretly has asked for, then I would have thought most juries would probably think that was corrupt.

  Q108  Mr Garnier: Except that publicity by itself is not necessarily a guard against corrupt behaviour. If you were a very clever person, you would stand up and say, "I am available for hire," and you could pocket huge sums of money to vote in a particular way, and because you have made yourself publicly clear about this, no consent would ever be given for prosecution. It may be that we are having an argument about the division between the responsibilities of Parliament for its own procedures and the responsibility of the criminal law to deal with criminals. I do think—and I will ask you whether you agree—that we need to pay quite close attention to the advice of Sir William McKay in his memorandum, because we are not here simply worrying about the prosecution of individual human beings who happen to be Members of Parliament but we are here as trustees of the privileges of Parliament. Privilege in the parliamentary sense is a much misunderstood word, as it is throughout the entire civil and criminal jurisdiction, and we are not simply trying to protect ourselves, are we, against being prosecuted for misconduct? We are seeking to protect the freedom of speech of Members of Parliament, of either House, to represent the people of this country fearlessly. If there is any inhibition put upon us either by your officers or by the criminal law generally, our jobs as Members of the House of Lords or Members of the House of Commons are inhibited. I think we need to be quite careful—and I ask you whether you agree with me—not out of a sense of political correctness or any other perfectly natural feeling, to place obstacles in the way of Members of either House carrying out their proper duties.

  Mr Wardle: I am sure that is right, and as far as the competing interests are concerned, I am sure this Committee will give them very careful consideration, but I think that David is right; I think there may be cases where there will be no prosecution if Clause 12, perhaps in a restricted form, is not enacted.

  Q109  Mr Garnier: Could I give you an example? Mr Robert Maxwell is now dead so we do not need to worry about his reputation, if ever we did, but if he had been stealing from the Daily Mirror Group pension fund but also happened to be a Member of Parliament, I dare say you would have thought it proper to prosecute him had you got the evidence, and simply because he was a Member of Parliament for Buckingham for a particular time would have been wholly irrelevant to your decision.

  Mr Wardle: Absolutely.

  Q110  Mr Garnier: But we are not talking about that sort of criminal behaviour, are we? We are talking about where a Member of Parliament, be they in the Lords or in the Commons, conducts himself as a legislator in such a way as to attract moral opprobrium or public criticism verging on crime.

  Sir David Calvert-Smith: Is that right? I am not sure that that is the intention of this clause. Suppose Robert Maxwell had said something in the House which supported any allegation that the SFO might have been making against him, and perhaps was a vital element of the case, in that it admitted certain facts, shall we say. Then whoever was prosecuting would want to use the fact of that statement in the House to support our case, and it would look very odd in that sort of case, because whatever he said we have been in Hansard anyway so everybody would have known it, if there were some artificial ban on our using that statement in any prosecution.

  Q111  Baroness Whitaker: Should we not be uneasy if our elected Member of Parliament fearlessly advocates particular legislation for which he has taken money with impunity though?

  Sir David Calvert-Smith: I agree.

  Lord Campbell-Savours: Can I go down the route Mr Garnier has gone down and quote from the memorandum given by the Clerk. You might want to comment on it. He says, "As drafted, Clause 12 goes far wider than that. As already mentioned, it would enable evidence given by a person to a Select Committee to be called in evidence in court in support of a charge of corruption against that person," which is what you were just commenting about. Then it says, "If a Member of Parliament had commented in debate on an individual who was subsequently charged with corruption, that Member's speech would be admissible as evidence under Clause 12 and the Member"—that is to say this other Member, uninvolved—"might be questioned about its meaning and the information on which it was based." It means that I, if I spoke about someone else's actions, might find myself, arising out of a speech if I had been in Parliament, being questioned by you and perhaps even involved in the court.

  Mr Garnier: It is going to come more directly on attempts rather than on the actuals. As a Member of Parliament, if one of my constituents offered to pay me a lot of money to do a particular thing, but of course I refused it, is Lord Campbell-Savours saying that that sort of speech would lead to, or could lead to, prosecution of a member of the public, based upon a remark made in the Chamber of the Commons or the Lords?

  Q112  Lord Campbell-Savours: Yes, as I understand it and that would mean you could be called on the basis of what you said in Parliament about that because of evidence in relation to that other person, if that other person was a Member of Parliament.

  Sir David Calvert-Smith: That is extremely doubtful. The way it is phrased, as you have just quoted, 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.

  Q113  Lord Campbell-Savours: Perhaps I could finish the sentence. He expresses concern and he says: "In my view, this"—that is what I have just described—"amounts to far more than a minimal encroachment on territory safeguarded by Article 9, which the Joint Committee on Parliamentary Privilege originally envisaged". He is obviously very perturbed by the possibility of that happening.

  Sir David Calvert-Smith: All I would say is that, as phrased, I do not believe that would be a concern because I do not believe a speech by an individual who had no personal knowledge of the facts, but merely commented in debate, could ever be admissible in a criminal trial.

  Mr Wardle: I would agree with that and, having looked at it, I assumed that one was talking about statements made by a person would only be admissible against him or her in any criminal proceedings; otherwise, I do not quite see how they could be got in.

  Q114  Mr Garnier: Am I being, as often, obtuse here? If I stand up in the House of Commons and say, "Mr Smith came to me in my constituency surgery and offered me £1 million in order to behave in a particular way", which would be adverse to the public interest, would not the fact that I had said that amount to material which—

  Sir David Calvert-Smith: We would then send a Bobby round to see you at home and say, "We are interested to see what you said in Parliament yesterday. Is that true? Will you please sign a statement saying it is true?" If you said, "I refuse to co-operate", then we could not use that statement in Parliament in any shape or form; it simply would not be admissible. You would have to give the evidence of what Mr Smith had said to you in your surgery in court, obviously.

  Q115  Mr Garnier: It would lead you on to a train of inquiry?

  Sir David Calvert-Smith: Yes.

  Mr Wardle: That is the case now.

  Sir David Calvert-Smith: That is what happens now. If you were to say such a thing, I am sure you would have a visit.

  Mr Garnier: I look forward to it!

  Chairman: We will not go through much of this material with you because of the time. We will come back perhaps to some of these questions. Members have a number of other question which would in part apply here and also apply more generally. Perhaps we could revert to those.

  Q116  Lord Bernstein of Craigweil: There is one point in the CPS submission, which referred to the omission of misuse of public office and trading in influence, and you say that further consideration and consultation is recommended. Do you have any specific ideas on how this can best be included into the Bill and could be enforced?

  Sir David Calvert-Smith: The common law offence of misconduct in public office has made a come-back in recent years. Having really not been prosecuted for many, many years, it is now quite common, and its exact scope is still the subject of debate and has not been pronounced upon recently, for instance by the House of Lords. There is at least a possibility that the Court of Appeal, and thereafter perhaps the House of Lords, may be asked to consider the scope of the offence of misconduct in public office. Many jurisdictions, as I understand it, do have a specific offence of that kind in statute. As I said a little earlier, and Robert actually said first, there is a proposal for something that looks very much like statutory misconduct in the proposed fraud legislation, which the Law Commission have come up with on the subject of fraud. Again, it would be simpler for prosecutors, were there such an offence; it would be easier, I believe, for tribunals of fact to understand what it was that was actually being alleged and it would take out of the corruption ambit those cases that Lord Waddington was asking about where perhaps dishonestly is not exactly the right word to describe it but it is somebody who has actually abused their function as a public servant.

  Q117  Lord Bernstein of Craigweil: At the moment they are prosecuted under the common law?

  Sir David Calvert-Smith: Yes.

  Q118  Lord Bernstein of Craigweil: You think it could be made part of a statutory offence?

  Sir David Calvert-Smith: Yes. Primarily, in CPS terms, it has been limited to behaviour by police officers which is so far below the standard of what police officers should do in respect of caring for someone that it amounts to misconduct.

  Q119  Lord Bernstein of Craigweil: So the problem of making it part of the statute if Parliament requires it?

  Sir David Calvert-Smith: That would certainly be a problem, yes.

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