Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 300-319)


21 MAY 2003

  Q300  Mr MacDougall: Could I give you three different scenarios and hope that you can enlighten me on each of them. If it is alleged that a Member has been bribed to ask a Parliamentary Question on a specific subject to a specific department, can the fact that he did ask such a question as recorded by Hansard be mentioned in court?

  Professor Sir William McKay: I think the fact can be mentioned but as soon as the court is invited to decide what he meant, what his motives were, whether some previous agreement for consideration eventuated in that question, that would be improper, Article 9 being as it is now drafted.

  Q301  Mr MacDougall: For example, could that Member argue in defence that Hansard shows that he never asked such a question?

  Professor Sir William McKay: Whether an omission can be a parliamentary proceeding? I just do not know the answer to that. I know that omissions can be parliamentary proceedings but that was only in an obscure case in South Africa some years ago. I really do not know.

  Q302  Mr MacDougall: What would happen, for example, if the Member argued "I was working late" and a researcher on that Member's behalf tabled that question? What would the situation there be?

  Professor Sir William McKay: I do not think the involvement of a third party in a proceeding vitiates or alters in any way the nature of the proceeding. If I, being a Member, receive a draft question from my researcher and, with or without amendment, I sign it and I give it to the researcher and he or she takes it to the office, that is a proceeding. Even if the researcher puts 15 questions on my desk and I sign them all without reading them, those are proceedings.

  Mr MacDougall: Thank you.

  Q303  Lord Carlisle of Bucklow: Are they proceedings when they get published?

  Professor Sir William McKay: Yes.

  Q304  Lord Carlisle of Bucklow: As soon as they are published.

  Professor Sir William McKay: There was a case just before the war in which Duncan Sandys, my Lord, was involved, in which there is a lot of interesting learning on how far this concept of proceeding extends backward in time to the drafting of a question. We are getting into the angels on the pinhead, but the principle which came out was if I am a Member sitting in the train drafting a question and I show it to a parliamentary colleague and I then go on and table the question, that is all right. But if I show it to a guy who happens to be sitting opposite me, that is publication of defamatory material because I do not need to show it to him.

  Chairman: You mentioned earlier in the United States that in the lower courts prosecutions can be brought without any sort of filter. What about the sort of filter we have now and the filter we could have? Mr Stinchcombe, perhaps you would follow this up.

  Q305  Mr Stinchcombe: At the moment we have the requirement for the Attorney General's consent to prevent vexatious prosecutions and it has been suggested in some quarters that that is overkill and that we could make do with the consent of the DPP in the case of parliamentarians in co-ordination with the Parliamentary Commissioner for Standards. What is your view on that possibility?

  Professor Sir William McKay: I think if the Committee is willing to accept my shifting of focus away from proceedings into the preliminary agreement then I do not mind who filters these things, but if the Committee is of a mind to retain the present suggestion in Clause 12 then that does the damage, not the back-up of provision of a filter.

  Q306  Mr Stinchcombe: Would you not want to protect against that damage by at least having some filter?

  Professor Sir William McKay: I think if you are going to expose Members of either House to the general criminal law, if you are going to do that without affecting Article 9 then I think Members have just got to swallow it and accept vexatious litigation because that is the aim, namely putting Members, so far as you can within the public interest, under the general law the same way as anyone else is.

  Q307  Mr Stinchcombe: Under the current situation is the Attorney General's consent needed for all offences of corruption?

  Professor Sir William McKay: I do not know, I am afraid.

  Q308  Mr Stinchcombe: You would not have Members of Parliament in any lesser position in terms of their protection than the general public?

  Professor Sir William McKay: By no means.

  Q309  Mr Stinchcombe: Exactly the same?

  Professor Sir William McKay: Exactly the same, leaving aside the Article 9 point.

  Mr Stinchcombe: I understand that.

  Q310  Baroness Whitaker: I just wanted to ask, Sir William, is your view the same if it were the Director of the Serious Fraud Office who had the power to give consent, bearing in mind that he would apply the same test with regard to public interest as the Attorney General?

  Professor Sir William McKay: I think, although this is not a matter in which I am particularly skilled, if Members of either House are going to retain some kind of protection , and I think they should, then let that protection be as principled as you can. If you have got to take a gamble on exposing Members of either House to prosecutions which may be trivial then do it, expose them, because they have already got the real big and important protection.

  Q311  Baroness Whitaker: That would argue for somebody removed from Government and removed from Parliament giving consent, ie not the Attorney General.

  Professor Sir William McKay: I would not, but this is not a matter in which I have great skill. I would say that presentationally Members, as we were saying, ought to get exactly the same level as any member of the public or any local councillor.

  Q312  Chairman: We have to consider very carefully the effect of removing Article 9, not just on society but on the individual Members of Parliament. It is very important to look at how such a prosecution would come about. In addition to that in a very strong sentence that if Members of either House thought that the court might examine Members' motives, even though they were not the Members who were actually being charged with corruption, you say: "Members not under suspicion might find their motives challenged. Such a prospect could have the most chilling effect on every speech every Member of both Houses might make." That seems to go quite a long way.

  Professor Sir William McKay: Yes, my Lord, perhaps.

  Q313  Chairman: If the instances of corruption are so rare that the courts are going to be very rarely called upon to deal with them and if the courts bear in mind that this is a very radical change, and one has to have regard to what has happened so far, would it really have such a great effect on Members and the everyday business of the House?

  Professor Sir William McKay: It would depend, my Lord, on how far all this penetrated the legislative consciousness. I do not think honestly you need even one high profile case You just need the understanding that something might go wrong and would expose a Member to the need to give an explanation in the courts when for generations and centuries that has not been the case. The ethos of both Houses at the moment is, I am sure, of complete freedom to say what you want.

  Q314  Chairman: I fully appreciate that but if a charge is being investigated against X, a Member of one House, and Y, who has been very close to X, is perhaps feeling a bit nervous about it all, he or she might want to go very carefully in speeches at that particular time, but to go further and say it "could have the most chilling effect on every speech every Member of both Houses might make—"—

  Professor Sir William McKay: Too many "every's" perhaps.

  Q315  Chairman: You feel this, I know.

  Professor Sir William McKay: I feel strongly that—

  Q316  Chairman: I am not quite following why that would necessarily happen.

  Professor Sir William McKay: Once Members of either House understood that the complete purity of freedom was gone, in many of the speeches they made they would be reviewing what they had to say, reviewing their text, their draft, from the point of view of possible exposure in circumstances they cannot now foresee.

  Q317  Mr Stinchcombe: Going back to Lord Waddington's point about the realism of all this, in the modern world most Members of Parliament make their speeches hoping that people are watching them on the television, they then put out press releases, they then offer to do all sorts of interviews on them, they then go and publish in annual reports the amount of times they spoke in the House of Commons in the hope that someone is impressed by their diligence and their activity, and they actively promote their parliamentary activities, and they do so hopefully knowing that they have not been corrupt, also knowing that in any event the occasions of corruption happen every ten years, even an allegation, and also knowing that they have got the Attorney General on their side to prevent them from vexatious litigants. Bearing in mind all that, in the real world is there any real harm at all in having a narrower clause perhaps that gets rid of something for which protection is no longer needed?

  Professor Sir William McKay: This is a judgment, if I may say, that the Committee will make. It simply seemed to me that Article 9 was a protection too valuable to surrender, however often used or however infrequently used.

  Q318  Baroness Scott of Needham Market: I wanted to follow on from this. Along with a very small number of both Houses I also remain a member of the local authority. When I go to my council tomorrow, can you say how I should tell them that I believe that as a Member of this place I should be subject to one set of rules, if you like, about what I can say and I can be protected in one way here whereas as a local authority member I enjoy no similar protection and yet, in fact, many of the same things apply should someone ever decide to lay a claim of corruption against me?

  Professor Sir William McKay: I think simply the answer is that the importance, frankly, of the decisions taken and the debates held in both Houses of Parliament are of greater public significance because they are national and this is a sovereign Parliament, than those of any individual local authority.

  Baroness Scott of Needham Market: I do not think I want to pursue that line of argument. I take issue with that in terms of the financial area because the actual opportunity for corruption is much greater at that level.

  Vera Baird: There is no written record kept of a local authority's deliberations. It would always be one person's word against another about what words were actually used, which might mean that it was less dangerous, as it were, to have no protection to local authorities.

  Q319  Chairman: Would you like to comment on that?

  Professor Sir William McKay: No, indeed.

  Chairman: We have looked at the effect on speeches but what about the effect of the inquiry by the police. Lord Waddington, would you like to raise this?

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 31 July 2003