Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 280-299)


21 MAY 2003

  Q280  Chairman: Far from an awful lot of problems disappearing it would create more problems than it would solve.

  Professor Sir William McKay: Intellectually it would solve all of the problems but practically it would solve none.

  Q281  Chairman: You remain of the view to leave this entirely to Parliament would not be a good idea?

  Professor Sir William McKay: I think it would not.

  Q282  Chairman: Not just for outsiders but for Members of Parliament themselves either.

  Professor Sir William McKay: That is the case.

  Q283  Lord Carlisle of Bucklow: As I understand it you are saying that you see value in making it clear that the general law on corruption applies to Members of Parliament—

  Professor Sir William McKay: Yes.

  Q284  Lord Carlisle of Bucklow: —which at the moment it is not clear whether it is common law, primary or statutory enactment, it is not clear whether that applies to Members of Parliament. If you rely on that, are you saying that you could really live with Article 9 without changing that at all and rely on prosecuting the very rare case, if it ever happens, where you are relying on evidence other than that from proceedings in Parliament?

  Professor Sir William McKay: If you drew up an offence which applied to proceedings in Parliament and applied to corruption where it touched proceedings in Parliament without infringing on Article 9, a clause which dealt with corruption in Parliamentarians, that I think would be the solution.

  Q285  Lord Waddington: Have you read the paper by Mr Harry Evans, the Clerk of the Australian Senate?

  Professor Sir William McKay: I have.

  Q286  Lord Waddington: Do you agree with him?

  Professor Sir William McKay: I do. I have not always but I certainly do on this occasion.

  Chairman: Let us move on a little bit, let us have a look at the terms of Clause 12.

  Q287  Baroness Whitaker: The DPP told us he was willing to contemplate a narrowing of the drafting of the clauses to cater for a case in which an MP or a Peer was the defendant. The problem is that if Clause 12 was more narrowly drafted, that might undermine the effectiveness of the Bill. Perhaps you can suggest a way in which it might be more narrowly defined?

  Professor Sir William McKay: With respect, 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.

  Q288  Baroness Whitaker: Except in parliamentary proceedings.

  Professor Sir William McKay: Exactly.

  Q289  Baroness Whitaker: Perhaps you have also read Sir Nigel Wicks' evidence?

  Professor Sir William McKay: I am afraid not.

  Q290  Baroness Whitaker: I understand he does not have your expertise in the subject but his Committee seem to be all in favour of parliamentary proceedings being used in evidence. I just wondered what you think?

  Professor Sir William McKay: No, I think the whole burden of my argument is that parliamentary proceedings should not be.

  Q291  Baroness Whitaker: Must remain outside?

  Professor Sir William McKay: Yes. That, as I understand it, is the stance also taken by the Clerk of the Parliaments and the Clerk of the House of Commons.

  Q292  Baroness Whitaker: The clerks are all solid on this, I think.

  Professor Sir William McKay: Yes.

  Baroness Whitaker: Thank you very much.

  Q293  Chairman: In that drafting it is not too difficult to get rid of Article 9 by a clause-type provision. It is more difficult to draft something that would make its effect narrower, reduce the width of its effect. Have you got any suggestions as to how it could be done more narrowly?

  Professor Sir William McKay: I have not, my Lord. I have no claim to any legal drafting skills.

  Q294  Chairman: Intellectually, do not worry about the pen in your hand but as a concept, can you suggest ways in which this could be done?

  Professor Sir William McKay: As a concept, those who offer or accept considerations to persuade Members of either House to act, in effect, in accordance with other than their public duty or their duty to the House commit an offence.

  Q295  Lord Waddington: Why should you say that notwithstanding the terms of Article 9 the record of proceedings in Parliament can be introduced in evidence but the accuracy of that record cannot be challenged?

  Professor Sir William McKay: Because, my Lord, I do not think that accuracy is material. What is material is that the Member has to go into court and justify his or her speech, and that is what Article 9 in its totality is about. They must not have to do that.

  Chairman: But to abolish it altogether is really quite a big step.

  Q296  Vera Baird: You make a strong point in your paper that if Clause 12 was passed the UK would be putting itself at odds with Commonwealth parliamentary structures who have really modelled themselves on us historically. Is that very important? You referred to, I think, the tension between the two aspects that have been clearly separated in US v Brewster being unresolved in Commonwealth jurisdictions. What impact would Clause 12 have in those Commonwealth jurisdictions?

  Professor Sir William McKay: Can I refer, first of all, to some evidence given to the Joint Committee on Parliamentary Privilege which goes to your first question about the Commonwealth common understanding of parliamentary privilege. It is a remark made by the President of the Legislative Council of Western Australia, where I think British privilege law either directly or indirectly applies. He was talking about the change which had been made in his jurisdiction by the Defamation Act and he said he hoped that before anyone in Western Australia found out what the law was the UK Parliament would have changed it. So he feels, and I know this is replicated across the Commonwealth, that while we all have little fuzzy differences at the edges our common understanding is really quite robust and quite articulated. We go quite a bit of the way down the line with each other. As to the tension in the Commonwealth countries between the Australian Crimes Act, which says a member can be guilty of corruption and also says "We have got Article 9 or something very like it", that is unresolved because there has been no cause to resolve it. As I said before, if that cause arose, although I cannot speak for my former colleagues in the Commonwealth, I think they would resolve it a" la Brewster. In any case, American jurisprudence derives from or rests on very much the same foundations as ours. As I said in the note, the Americans began in 1787 with Article 9 and it was only an interfering drafting committee that gave them the speech or debate clause.

  Q297  Chairman: If we got rid of clause 9, would other Commonwealth countries follow or would they say that we have gone mad?

  Professor Sir William McKay: I think I would take the fifth. They would not be impressed, if I may speak for them. Harry Evans's memorandum gives you a flavour of that, my Lord.

  Q298  Chairman: It is a question really as to what would be the damaging effect, if any, of making a departure from other Commonwealth countries. We have done it in so many areas and they have done it to us in so many areas that perhaps damage limitation is not as important as it used to be.

  Professor Sir William McKay: This is a little nearer the bone than most other divergences, I think.

  Q299  Mr MacDougall: Sir William, in your paper in paragraph nine under "The law of Parliament", you begin by mentioning "The offer to or acceptance of a bribe by a Member of either House is without question a serious contempt of Parliament".

  Professor Sir William McKay: Yes.

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