Joint Committee on The Draft Corruption Bill Minutes of Evidence

Examination of Witness (Questions 320-339)


21 MAY 2003

  Q320  Lord Waddington: You have envisaged the possibility of prosecutions being brought against Members of Parliament for corruption without anything being done to Article 9 at all. Do you envisage police officers coming on the Parliamentary Estate and, having come on, do you envisage them interviewing Members of Parliament under caution, carrying out surveillance, covert surveillance, of Members of Parliament? What are the difficulties in that area that you can see, if any?

  Professor Sir William McKay: My Lord, the difficulties have been experienced very acutely both in Canberra and in Ottawa. Protocols have been worked out, which probably for better accuracy the Clerks of these Houses could inform the Committee about, which, for example, require the agreement of the presiding officer before anything is done on site. This is not to say that Westminster or Ottawa or Canberra are statute-free or police-free zones. Even in the House of Commons a Member has been arrested in the Chamber, the House not sitting. First of all you get the agreement of the presiding officer and then the presiding officer may—I think this is the arrangement—take steps to ensure that papers gone through by the police are only those likely to be relevant, no trawling through three filing cabinets, only the relevant papers; and that, I would imagine, would have to be checked.

  Q321  Lord Waddington: Many might think that any sort of investigation carried out within the precincts of Parliament, even if there is a protocol saying what can be done and what cannot be done, is in many ways a far more intrusive interference with the special position of a Member of Parliament than would be the introduction in evidence of the mere record of parliamentary proceedings. So it seems in many ways you are straining at a gnat when prepared to swallow the camel.

  Professor Sir William McKay: It is an Australasian and North American gnat. There is a philosophical point here. Members who have been involved in improper agreements which are not part of parliamentary proceedings cannot, it seems to me, and ought not to rely on their special status as Members, because Article 9 is not about status but about activities. I do not think Members ought to have a special status if the criminal law is at issue. On the other hand, and the protocols ensure this, I imagine, special steps have got to be taken to ensure that the powers of the police are not abused.

  Q322  Mr Shepherd: I want to pursue this intrusive point because the police further argued in front of us there should be level playing fields on covert and other sorts of surveillance, telephone tapping, for instance, everything about conducting your business as a Member of Parliament. I cannot see how a protocol protects you. I think under our existing law—we have a former Home Secretary here—it requires the authority of the Secretary of State to tap a telephone.

  Professor Sir William McKay: In addition, Mr Shepherd, Harold Wilson, when Prime Minister, gave an assurance that Members' phones would not be tapped.

  Q323  Mr Shepherd: There is nothing special, are you saying, about the Palace of Westminster or the precincts or the offices of Members of Parliament?

  Professor Sir William McKay: No. There is nothing formally special but the police ought to be very, very careful.

  Q324  Mr Shepherd: I understand that. The point they were making to us about entrapment, to tape telephone conversations and all the rest of that, was as long as they do it by lawful authority, such as under the statute of the Secretary of State, they have that right now, the Security Services for instance. The other question I just wanted to ask is on the presiding officer's authority in these matters, presumably the Speaker here. What if the Speaker or the presiding officer is of course the subject of the investigation? I know this is striking at the throne.

  Professor Sir William McKay: I do not know the answer.

  Chairman: Of course, there might be other offences for which somebody who was being prosecuted, who had done the investigation, waived privilege and then he is now in court on other possible offences.

  Q325  Baroness Scott of Needham Market: For example, if a Member were to argue that they had behaved entirely within the rules of the House, what would a court make of that?

  Professor Sir William McKay: This is an aspect which the Joint Committee on Privilege had a look at. I think the nub of their conclusions was it would be good if the internal regulations of the House, of both Houses, about what was to be declared, how it was to be declared, how much was to be declared, were lined up, so far as they could be lined up, with statute law. There might be a possibility when the law as it applied to Parliament was being redrafted that it could bridge the gap so that if I, a Member, received £500 from the Scottish Rugby Union, and in some way or another that £500 was at the heart of a corruption allegation, I could say "But I declared it". So long as the basis of declaration were perhaps expressed in the law to be a sufficient defence and the law had confidence that the Houses had a robust and accurate system of declaration and recording of that money, that might be the answer. I can see that it would be ridiculous if a Member complied with the requirements laid on him or her by his or her respective House and then for some reason found themselves before the courts.

  Q326  Lord Carlisle of Bucklow: Is a declaration of proceedings in Parliament legitimate?

  Professor Sir William McKay: The register was held not to be but I think that has been judicially noticed at a higher level with a certain amount of dubiety. The Joint Committee said the Register of Interests ought to be a proceeding and certainly in logic it does seem to be. We were very surprised to find the courts holding that it was not.

  Q327  Lord Carlisle of Bucklow: It does come back to this awful business that at the moment of charge, saying a Member of Parliament is accused to have asked a question or made a speech for a dishonest motive and having received an advantage, they may wish to say "It was completely above board, I declared it in the Register of Interests" and you mean that could not even go before the courts?

  Professor Sir William McKay: I think it could. I think it ought to go before the courts.

  Q328  Lord Carlisle of Bucklow: It would have to in fairness to the defendant.

  Professor Sir William McKay: Yes, I think it would. I am sure there are ways of doing this that are easier in terms of a simple declaration, was it made or not made?

  Q329  Lord Carlisle of Bucklow: It might be equally relevant if he had not put it in the Declaration of Interests and then you are asking someone to infer from that why did he not put it down.

  Professor Sir William McKay: Again, it will be a matter of drafting but the inference surely could be arrived at and shown to the court that money had been received and not declared by other means. There are terrible difficulties in this and I think at the end of my paper I say so. It is a matter of balance.

  Q330  Mr Shepherd: Perhaps you could help me, Sir William. Being the devil's advocate, the Bill of Rights, of course, was at a time when the executive was outside Parliament and the fear of Parliament, and therefore the rules that grew up were to protect the liberty and freedom of speeches of the representative, however representative they were or not, against the power of the executive, the King, the sovereign power, and that was a very real threat and so one tried to protect, and I can understand all the reasoning. Now I am telling a constituent that what I have to protect is this freedom of speech, against whom? It is clearly not a power that is not subject to law itself, whereas it was designed to protect against a power that was not necessarily subject to law itself. The risk to Members of Parliament, very real in those days, from arbitrary arrest, from imprisonment, from impeachment, all of those were real incursions into the freedom of people to be represented if, in fact, they had representatives. It is extraordinarily difficult for people outside, and indeed for people inside, to quite grasp the significance of why what we say is something that is, as pointed out by Mr Stinchcombe, part of the public proceedings of the nation.

  Professor Sir William McKay: I can think of several classes of person who would interfere or would be in a position, more accurately, to interfere with the collective decision-making of both Houses in such a way as to make it something which the individual Members might not wish it to be, and that is the price.

  Q331  Mr Shepherd: Such as the press?

  Professor Sir William McKay: For example; or simply people outside normal political life who want to throw a spanner in the works and sue Members for what they have said. Then Members have got to go and defend what they have said, not in the forum in which constitutionally they ought to do so—the House—but before the courts.

  Q332  Mr Shepherd: On matters of the press, by and large they do not sue Members of Parliament but is that not the rough trade of national debate, the way they refer to us and do not understand our merits as fully as we would like them to and all the rest of it? The modern person would say "Well, that is how life is" and that is an exchange between a Member of Parliament and a vibrant, let us put it as politely as that, press. On the other classes that you are saying, the protection of freedom of speech I understand is a simple thing to be able not to adduce, therefore, in court hearings what is actually said on that, but somehow I feel that this article from the Bill of Rights is beyond the comprehension of most modern Members of Parliament and the public at large. As Parliament—I accept this is certainly not your stance—it is the guarantor in the sense of our liberties but I do not see in what way this is incursive—I am just putting this as the devil's advocate—in encroaching on our essential liberty as a sovereign body.

  Professor Sir William McKay: To look at it another way, formally in America and informally here ,it is a kind of guarantee of the separation of powers, that the formation and expression of political judgments is not subject to any control but that of those whom the nation has elected. No-one should be able, and this is the rationale of Article 9 it seems to me, to bring pressure on elected Members by the use of the law or any other expedient; elected Members are subject to review at five yearly intervals only.

  Q333  Mr Shepherd: Clearly if I corruptly accepted gifts I am not protected in any sense by the law, we are talking about a much narrower area than that, we are talking about proceedings within Parliament as a Member of Parliament. In what way does it need that?

  Professor Sir William McKay: I can think of certain European partners where the press is, as I understand it, in a stronger position than it is in this country to interfere with parliamentary proceedings, to bring pressure to bear on Members. I may be wrong but, if that is so, that is a situation that we would wish to avoid and Article 9 puts us in a position to avoid it.

  Q334  Mr Stinchcombe: As I understand it, the suggested clause that would impact upon Article 9 is only applicable in corruption proceedings. I just wonder if it was right in the past that Article 9 was there to protect us against an over-officious executive, is it not now right that we should redefine our protection to protect Parliament from corruption itself?

  Professor Sir William McKay: Yes, and I think my suggestion would do that without damage to Article 9. It is certainly no part of my argument to say that Members of Parliament of either House ought to be above the criminal law in matters of corruption. They ought not, and if they were that would be the worst of all possible outcomes.

  Q335  Chairman: Sir William, you are obviously troubled about, as it were, the judges loose on this issue in some respects even though you think to leave it to Parliament in a modern world would be worse. If an MP or Member of the Lords was to be charged and he said "What I am doing is perfectly approved by the rules of the House", why is a judge not capable of resolving that issue? If the evidence is uncontradicted and this is a practice or rule of the House, that is it. If there is a conflict he would have to decide in the unlikely event of two conflicting views by officials or Members as to what rules the House would allow or encourage and he would have to resolve it. Why is that more difficult than any other issue?

  Professor Sir William McKay: I think, my Lord, there is a difference between attributing motives to something said in the House and showing as a matter of fact that as a practice of the House a significant entry in the Register has been made. I think it is easier to allow the second than the first and certainly the more satisfactory. If that second expedient could be taken up it would limit the problem.

  Mr Shepherd: By "rules of the House", do you mean Standing Orders?

  Chairman: Standing Orders or a practice of the House which was followed generally.

  Q336  Mr Shepherd: My understanding always was, and you must advise me as always on legal matters, Sir William, in a sense our Standing Orders are part of the constitution of this country and it is a sovereign Parliament in a legal sense no less and that should not be challenged in the courts. Am I right?

  Professor Sir William McKay: Certainly, yes.

  Q337  Mr Shepherd: That, I think, is the burden of the argument in that and that is why it is not appropriate for judges, however distinguished, to be cross-examining the motives of this sovereign institution. I said that in a positive sense but it was with a question mark and a diffidence because it needed validation from those in authority.

  Professor Sir William McKay: Mr Shepherd, I think the context in which this is most likely to arise is the Register of Interests. I can see less objection to the court having formal access to what is in that register because that is slightly different from having access to and considering the significance of Hansard, though I grant you the absence of a declaration is difficult.

  Q338  Baroness Whitaker: Would you not draw a difference between the Register of Interests which is in any case relatively modern, but an administrative procedure, and proceedings in Parliament actually connected with legislating? That is the function, legislating, which is at issue, it is not saying who has paid you money and where you have been on holiday.

  Professor Sir William McKay: However you arrange the concepts, that is the distinction one would be anxious to make, if at all possible, in this case because it would reduce the difficult area.

  Q339  Lord Waddington: All this business of whether what he does complies with the rules of the House or not is a non-problem provided you have a sensible definition of corruption. It only becomes a problem because at the moment this Bill gives a dafter definition of corruption. If you import the idea of dishonesty then the problem goes away, does it not?

  Professor Sir William McKay: I am sorry, I am not privy to the Committee's previous—

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