Taken before the Joint Committee on the Draft Corruption Bill on Wednesday 21 May 2003
Vera Baird Slynn of Hadley, L. in the Chair
Memorandum submitted by Professor Sir William McKay
Examination of Witness
Witness: PROFESSOR SIR WILLIAM McKAY, KCB, former Clerk of the House of Commons, examined.
Q226 Chairman: Sir William, thank you very much for coming and for your very helpful paper and your analysis of the issues. Can I start with a rather general question which I would like to clear in my own mind, how broadly should we construe proceedings in Parliament?
Professor Sir William McKay: I think, my Lord Chairman, the indication given to us from Australia through the Parliamentary Privileges Act, imported for practical purposes into this country by the judgment in Praeborne(?), gets it about right, both in scope and in character. I would expect that were we ever, as I indeed I suggested to the Joint Committee on Parliamentary Privilege some years ago, to legislate our formulation would owe much to, if not replicate the Australian model.
Q227 Chairman: Have you considered the sort of activities which might set the scene for corruption which were parliamentary activities of a kind very broadly construed which were not proceedings within the definition? What would be a good example?
Professor Sir William McKay: I can see a contractor who is anxious to improperly secure influence with a contract-awarding department would say to the Member: "Lean on the department", or even, more simply: "Get me a series of interviews with the minister, senior officials and you will have a ticket for Seville".
Q228 Chairman: Some questions pretty obviously could not be asked, there may be areas which those of us who have not had long experience in the Commons or here might find difficult, what sort of things would be barred? What sort of questions would be barred in a court action as being covered by proceedings in parliamentary defence?
Professor Sir William McKay: The difficulty, the really hard case would be the prohibition on drawing inferences from something that happened in either House, not so much the activity, that is easy enough, but it is the inferences from undoubted parliamentary proceedings which are vital, it seems to me, to be contested in the courts. The dog that did not bark, the Member who having being bribed did not rise in this higher place.
Q229 Chairman: Can you think of a case or preferably cases where perhaps proceedings would have been brought that were not brought because of the embargo on questions about parliamentary proceedings?
Professor Sir William McKay: I cannot think of any in my own experience of that character. I can think of some which one heard of at various stages of their development and in varying detail, in which we said, the clerks said: "Go away and get your evidence else where". I am not always sure that the outcome was or was not a prosecution.
Q230 Chairman: It would be very interesting if there were any statistics or even anecdotal data as to the kind of case and the number of cases in which proceedings had to be brought because you could not prove them without relying on parliamentary evidence.
Professor Sir William McKay: Nothing comes to mind. I would simply draw the Committee's attention to the remark in the report of the Parliamentary Joint Committee: "These are rare events".
Q231 Chairman: There are not many of these cases that came to your knowledge --
Professor Sir William McKay: That is right.
Q232 Chairman: -- as a clerk or in your earlier capacity?
Professor Sir William McKay: That is right.
Q233 Chairman: What sort of number over the years?
Professor Sir William McKay: In my last ten years in service two, perhaps, maybe a single one. Two if you include the Greenway case, which we were involved in discussing but did in fact result in a prosecution.
Q234 Chairman: We had the dog that would not bark, what about the sledgehammer that cracked the nut, if we propose the law should be changed in view of a very small number of cases?
Professor Sir William McKay: You would need a mighty sledgehammer to crack an almost invisible nut. This is the nub of the case which I tried to make to the Committee, the consequences of partial withdrawing of the protection of Article 9 would very, very rarely fall on the corrupt Member of either House, they would be much more likely to fall on the Member who when the Corruption Bill, in whatever form it is introduced, in the House of Commons in particular and the Member who has got a corruption case going on in his constituency, nothing to do whatever with Parliament, and that Member makes a contribution to debate and either by accident or design says something about the case before the courts it is not caught by the subjudice rule, the House is legislating. If the law were changed along these lines I would imagine any defence counsel would be anxious to throw a little smoke around and ask for the Member's attendance to discuss what it was he said, how he knew it and what his motives were. This is, it seems to me, exactly what the Bill of Rights is intended to prevent happening. The Member himself is not corrupt but having lost the protection of Article 9 he or she is asked to explain themselves before the courts.
Q235 Chairman: You say there are very few cases, without giving names or too much detail what sort of area were the cases that you know about? What kind of corruption?
Professor Sir William McKay: I think one of them I can remember did not involve Members but other participants in the proceedings in Parliament, because as you know Article 9 covering proceedings will cover not only Members but officers, witnesses and petitioners.
Q236 Chairman: Was that an exchange for money or some other favour?
Professor Sir William McKay: I do not think I ever knew.
Q237 Chairman: What is corruption?
Professor Sir William McKay: I am not qualified to give you an answer I am afraid.
Q238 Chairman: What would you from your previous incarnation or your role as a professor or as a citizen see as the essence of corruption, what is it all about really?
Professor Sir William McKay: It is the dissonance between the public responsibility which rests on the Member of either House and the motives following which that public responsibility is acted on. The motives are wrong, there is an advantage to be gained which is not a public advantage but a private advantage.
Q239 Lord Waddington: Would you agree, Sir William, perhaps some of the problems we are now facing we would not be facing but for what a layman might think are rather strained interpretation that the courts have put on Article 9? On the face of it one would not have thought that one was impeaching or questioning the truth of what was said in Parliament or the accuracy of the record of what was said in Parliament if one was merely adducing evidence of what was said in Parliament as part of one's case against a Member for instance in a corruption case. Have we got ourselves into this terrible mess because the courts have found that Article 9 actually means something which the clear words of Article 9 do not say?
Professor Sir William McKay: I think, my Lord, this is the view that was taken in the 1980s in Australia, that it was perfectly possible to draw inferences from the parliamentary record as long as you did not expose the participant in the proceedings to a criminal liability.
Q240 Lord Carlisle of Bucklow: If the parliamentary record is privileged how do you draw inference from it if that cannot go before the board?
Professor Sir William McKay: The House of Commons, and I suspect also the Lords, has always allowed the record to be brought into court. This is an answer to Lord Waddington, what was objected to was when it got there what happened to it, you were not to draw inferences from it. In the 1980s some Australian courts allowed inferences to be drawn and this was the genesis of the Parliamentary Privileges Act in Australia which has come by a backwater to us, which put back the traditional reading of Article 9, that you cannot impeach your question. You cannot get access to the motives of the member participant or anybody else participating in the proceedings.
Lord Waddington: That really leads straight on to the second question, does it not?
Q241 Chairman: I was just going to ask you, you mentioned parliamentary privilege, it was amended by the Parliamentary Joint Committee in 1999 that there should be a statutory definition of parliamentary privilege, do you agree with that suggestion?
Professor Sir William McKay: I certainly agree with the suggestion that we have now reached the stage where statutory definition is on balance a necessary evil.
Q242 Chairman: Then we would not need to look at Article 9 if there was a statutory definition.
Professor Sir William McKay: Certainly. My suggestion in that eventually, were my advice to be asked, would be, take the Australian model and carry over with the Australian model the ban on the imputation of motives in court.
Q243 Chairman: What would you suggest is the right definition?
Professor Sir William McKay: I think I would rest on what the Australians have done, which the Committee will find in the document.
Q244 Chairman: In your view would it be a good idea if we were to recommend there should be a definition in this Act for parliamentary privilege or is that a separate Act?
Professor Sir William McKay: It is no longer my duty to advise Members of the chair.
Q245 Chairman: I was not asking your advise, but what do you think?
Professor Sir William McKay: A Bill about corruption cannot, will not, should not include a definition of parliamentary proceedings.
Q246 Lord Waddington: I am trying to summarise your position and then we will know, you do not see any objection to charges of corruption being brought against Members of Parliament and being tried in ordinary courts of the land but, (a) you do not think it is necessary to attack Article 9 in order to do that and (b), the attack on Article 9 is far wider than would be necessary if it was thought necessary to attack it in order to make it possible to bring prosecutions against Members, because it also allows evidence as to what happens in parliamentary proceedings to be used to support a prosecution of somebody else and it also enables some innocent MP against whom no allegation has been made to be cross-examined about what he said in Parliament. Thirdly, the proposal in this Bill does not actually follow the recommendations of the Joint Committee, which did not recommend that this matter should be tackled in isolation but should be tackled as part of a wider measure defining parliamentary privilege?
Professor Sir William McKay: Indeed, my Lord, that is the case.
Q247 Lord Waddington: Is that the summary?
Professor Sir William McKay: There is a wonderful phrase which says, if you do not buy the whole package privilege will become an amalgam of modern statute and ancient learning.
Q248 Lord Carlisle of Bucklow: You have accepted what Lord Waddington says that the bar to a prosecution of a Member of Parliament is one thing and you agree should disappear or should go and they should be subject to prosecution but as long as you have Article 9 how do you prove the corruption if it is in any way related to someone who receives a sum of money for the purpose of promoting a particular cause which he otherwise would not promote?
Professor Sir William McKay: The American experience suggests that you can try the improper agreement to do the thing. I have tried to put in several quotations from Brewster. Chief Justice Gardiner was saying promises are not legislative acts, promises are not proceedings in Parliament. Try the improper promise, the agreement to do the wrong thing. Their experience in Brewster, as in Singleton, and I also quote Helstoski and McDade which happened in the 90s, is conviction were obtained from entry into an improper contract, although the completion of the bargain in Congress was not shown.
Q249 Lord Carlisle of Bucklow: Is the completion in Parliament a necessary part of the evidence to show the original agreement?
Professor Sir William McKay: The Americans have not found it so.
Q250 Lord Carlisle of Bucklow: You said that you can somehow distinguish between the act of passing the money and the resultant advantage that it was actually given to that person, the ultimate advantage arises out of parliamentary proceedings?
Professor Sir William McKay: The ultimate advantage would be the proceedings itself, it would in the case of Brewster postal legislation of the kind that the persons who were bribing Brewster wanted. As I said, I have to confess it was not a unanimous judgment and despite what the majority said a shift in emphasise from the previous jurisprudence, but they got their conviction and they got other convictions.
Q251 Chairman: The Brewster case, as you rightly point out in your paper, is very relevant to what we are looking at here and very important. Your view is that is as good as we have to look at at the moment. Is there any explanation why Commonwealth countries have not followed Brewster or come to the same result as Brewster?
Professor Sir William McKay: I think they have not had the necessity to make the difficult judgments.
Q252 Chairman: Would the result in the United States be very different from Australia, New Zealand or Canada because of the lack of the Brewster judgment or would you think the result would probably be much the same?
Professor Sir William McKay: I think the result would be much the same. My evidence was saying, and this is only from a lifetime of gossip with colleagues across the Commonwealth, sometimes in conference rooms and sometimes in smoke-filled bars, but I think the answer would be we all come to the same conclusion if we could.
Q253 Mr Stinchcombe: You have said that there would be no need to adduce evidence of parliamentary proceedings because you could attack the agreement itself, how could you if the offender was not corrupt in obtaining an advantage but was corrupt in confirming an advantage through parliamentary activity?
Professor Sir William McKay: This is not an area where I am an expert, could you not tackle that by the way you framed the offence?
Q254 Mr Stinchcombe: Working within the words of the clause as currently drafted the evidence is he confers an advantage, you have to prove the conference of an advantage. If the conference of an advantage was for example promoting a Ten Minute Rule Bill how would you prove that in parliamentary proceedings?
Professor Sir William McKay: As I said, this parliamentary aspect of the corruption legislation would have to be taken out and dealt with separately.
Mr Stinchcombe: I see.
Q255 Vera Baird: There is a disadvantage to an MP against him as an allegation, is there not, in the sense that if the allegations are compact he cannot rely on parliamentary proceedings to show that he said the opposite of what the compact was set up to make him say?
Professor Sir William McKay: I thought about that. I was anxious to try to meet that possibility. I was on the point of saying, let the courts see as a matter of fact that the Ten Minute Rule Bill went ahead and the member from Tolpuddle did not speak against it. Then, a moment's thought, that is drawing an inference, and you could not do it. Of course, as I say in one of the later paragraphs, yes, there are difficulties with the proposition I am putting forward, I simply measure against the loss if we do not get that right against the loss if we bring the sledgehammer down on Article 9 and the number of cases where this is likely to arise would be so few and the protection given by Article 9 would be so great there may be some things that we just have to hope do not significantly happen.
Q256 Baroness Whitaker: I have a really ignorant question, is it really according to natural justice to draw prejudicial inference without the person who is the subject of the adverse inference having an opportunity to be cross-examined? Is that not what ought to happen?
Professor Sir William McKay: Yes. Hamilton v Al Fayed is a good example of this, and the problems to which that gave rise, not least the Defamation Act. I would suspect in most cases if the situation which you mentioned arose and a prosecution were brought on the limited front which I am suggesting would be preferable those whose reputations were prejudiced would have their day in court.
Q257 Baroness Whitaker: What they said in Parliament, which was the nub of the whole matter, is it could not be cross-examined?
Professor Sir William McKay: What I am trying to argue for is the nub of the accusation would not be what happened in Parliament, the nub of the allegations would be: "You", the Member for Tolpuddle, "agreed to do a bad thing".
Q258 Baroness Whitaker: That might be the only evidence of it.
Professor Sir William McKay: That might be the only evidence of it but it satisfied the Americans.
Q259 Mr Shepherd: Hamilton v Al Fayed was defamation.
Professor Sir William McKay: The Defamation Act is limited to a civil action of that kind.
Q260 Chairman: Can I go back to the comparison between what we have now in the United States on the one hand and other Commonwealth countries on the other, is the small number of cases we have here replicated in the United States or in the other Commonwealth countries?
Professor Sir William McKay: Certainly in the other Commonwealth countries we know of very, very few. When I spoke to the Canadians they knew of none at all. Now across the border there are three, the three which I mentioned, two in the Supreme Court and one is the US Court of Appeals since 1970. They are not very prevalent anywhere.
Q261 Chairman: The agreement, as Lord Carlisle pointed out, is the distinction between the agreement to the act and the actual act which seems to be capable of being very difficult to apply. Where the Americans have drawn this distinction are you aware of any cases where the prosecution has failed or has not been not brought because the evidence of the act could not be admitted, even though the evidence of the agreement could be?
Professor Sir William McKay: Not in the superior courts, not in the Supreme Court or the Court of Appeals. I cannot answer for state courts.
Q262 Chairman: This can be brought and prosecuted in the lower courts?
Professor Sir William McKay: Yes.
Q263 Chairman: There is no evidence here.
Professor Sir William McKay: I do not think so.
Q264 Chairman: That is quite interesting. One of the matters we have already mentioned is the question of parliamentary privilege, I would like your views on what is said by the Clerk of the Parliaments, is he troubled about the erosion of freedom of speech in Parliament? Obviously this is a balance that we have to worry about here, freedom of speech and ensuring that crime does get punished. He says that if we adopt Clause 12 in its present form this will be the third serious erosion of Article 9, the other being Pepper v Hart and Section 13 of the Defamation Act, the present act not being reversed we essentially lose the privilege of freedom of speech altogether. Is Pepper v Hart an erosion of the freedom of speech?
Professor Sir William McKay: It was felt to be so by myself and my previous incarnation. It would be interesting to know perhaps - research has been done - how far over the years since 1993 the limitations imposed by that decision have been observed in the lower courts. Anecdotal evidence is mixed.
Q265 Chairman: It would be the interesting to see. As far as the House of Lords are concerned I would not have thought there was much erosion of the freedom of speech, either we do not look at or if we do on the whole we tend not to attach any importance to it because it was not relevant to the case. What do people feel about it? Do people still feel this is an erosion?
Professor Sir William McKay: Yes, I think so. It is an irritant which like many others you learn to live with.
Q266 Lord Waddington: Obviously you are very worried about the wholesale attack on Article 9, what would you say if instead of a provision such as appears in clause 12 of the Draft Bill there was merely a statement that the record of what was said in Parliament could be introduced in evidence but the accuracy of that record could not be challenged? That would not cause any worry, whether it would help very much in bringing a prosecution is another matter, would that cause you any worries?
Professor Sir William McKay: If I understand you correctly it would still allow one side or the other in court to ask a Member what he meant by what he said. I think that is too high a price to pay for the remedying of a very, very serious but very rare mischief.
Q267 Lord Waddington: Would it actually be dangerous in reality. Let us get to the reality of it, if the prosecution could say: "This is what Hansard says and the law says that cannot be challenged, it cannot be alleged that it is an inaccurate record and you, members of the jury, can draw what inferences you think are proper from the fact that this is what appears in the parliamentary record, can that really be said to be a terrible attack on the freedom of speech of the Member of Parliament?
Professor Sir William McKay: I would say so.
Q268 Chairman: Would Members be less willing to speak freely in Parliament?
Professor Sir William McKay: I think they would. The Member who has the floor does not need to be in a million miles of corruption he just needs to be talking about it or an instant case or a case that comes on next year, a constituency problem which at the time the Member speaks he has no conception will fetch up in the courts.
Q269 Mr Shepherd: You have no examples of this?
Professor Sir William McKay: No. If I may say so that does not seem to go to the merits of the argument except insofar as it demonstrates the rarity of the mischief.
Q270 Lord Carlisle of Bucklow: So far we have been discussing it on the basis of whether you had proved a prosecution, let us look it at it from the other side, proving the innocence, the extent that one has to prove innocence. An individual is alleged to have given a corruption bribe to someone to act for them, and he says: "That was not my intention, if you look at the question asked it had no relation to the purpose I am said to have been pursuing", can he not go to the wording in Hansard at least to show that the allegation that is being made against him was not in actual fact true?
Professor Sir William McKay: You have put your finger on it, this is a very difficult thing to do. It is just that on balance ---
Q271 Lord Carlisle of Bucklow: It might lead to the wrongful conviction of an innocent individual.
Professor Sir William McKay: One would hope that the evidence which was germane to the alleged compact between the apparent briber and the apparent receiver of the bribe would be sufficient to throw up a character of that agreement.
Q272 Lord Carlisle of Bucklow: Without reference to parliamentary procedure?
Professor Sir William McKay: Without reference, exactly.
Q273 Vera Baird: Sir William, the potential solution to that would be to entitle the Member to waive privilege, the trouble is that people would then draw an inference?
Professor Sir William McKay: Yes. All you need to do was to bribe two Members and then one of them would waive privilege and the other would not. That is in effect the Defamation Act solution. The Joint Committee of Parliamentary Privilege has summed up very succinctly the arguments against that. It is like trench warfare. If the protection of Article 9 is broken into your position is very much weaker than if you have untouched protection.
Q274 Chairman: Going back to the freedom of speech point you made, if Parliament adopted an alternative option that you mentioned, like an investigation by Parliament itself or by a committee would that have less effect on freedom of speech or the same?
Professor Sir William McKay: I think by reason of the inability of either or both Houses to conduct a fully acceptable and fair trial procedure I think the expedience or reliance on parliamentary law is just a non-starter.
Q275 Chairman: A Committee of this kind would not be as effective as the court to deal with this?
Professor Sir William McKay: I do not think it would.
Q276 Chairman: If it did deal with it or you accepted the idea this might have a less inhibiting effect on the freedom of speech?
Professor Sir William McKay: Certainly. If the law of Parliament, which has traditionally disciplined Members, could be made effective to do that today, if Members had enough time, enough skills to do this then all of the problems would be solved
Q277 Chairman: All?
Professor Sir William McKay: Yes.
Q278 Lord Waddington: You cannot have a corruption case without there being two people involved, the chap who offers the bribe and the chap who accepts the bribe. As the person who offers the bribe is an ordinary citizen who is not a Member of Parliament is that inconceivable that you can have a procedure within Parliament whereby an ordinary citizen was tried by a parliamentarian rather than by the ordinary courts of the land?
Professor Sir William McKay: This is one of the objections.
Q279 Lord Waddington: It is a non-starter.
Professor Sir William McKay: It is logically splendid but practically null.
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, I think would be the solution.
Q285 Lord Waddington: Have you read the paper by Mr Harry Evans, the Clerk of the Australian Council
Professor Sir William McKay: I have.
Q286 Lord Waddington: Do you agree with him?
Professor Sir William McKay: I do. I do 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 clause 12 was more narrowly drafted, that was 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 lessoned 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, well 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 Weekes' 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 Member who 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 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 this 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 we all have little fuzzy differences at the edges but 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 à la Brewster. In any case, American jurisprudence derives or rests on very much the same foundations as ours. As I said in the note, the Americans began in 1778 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.
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, Article 9 being as it is now drafted, that would be improper.
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 African 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, 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 old boss, 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 colleague and I then go on and table the question, that is all right, but if I show it to the 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 a vexatious litigant because that is the aim, namely putting Members, so far as you can within the public interest, before 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, and I think they should, some kind of protection 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 and 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 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?
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; 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 with, so far as they could be lined up with, statute law, so that, who knows, there might be a possibility when the law was being redrafted as it applied to Parliament which could just as a matter of fact bridge the gap 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, 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 journal 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 and then Members have got to go and defend what they have said, not in the forum which constitutionally they ought - 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 who 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 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, 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 -----
Q340 Lord Waddington: As long as you have got some formulation which brings in the guilty mind, whether you call it dishonesty or breach of duty, then it is a non-problem.
Professor Sir William McKay: The guilty mind would very much be part of, or consistent with, the solution that I am suggesting.
Chairman: Are there any more questions on the Declaration of Interests?
Q341 Lord Carlisle of Bucklow: It is a bit of a cloud-cuckoo land, is it not, because as far as I know the register is, in fact, a public document? Am I not right? I look to the existing Members of the House of Commons but I think the Register of Interests is free and open to the press to quote at any time, is it not?
Professor Sir William McKay: To the press, yes.
Q342 Lord Carlisle of Bucklow: If that is so it is a strange world if it is open to the public and everybody knows what it is in it but the only people who cannot be told are the courts and it might have a relevance.
Professor Sir William McKay: That is the kind of inverse of the sub judice rule. The sub judice rule bites on the House but not on the press because of the damage the House can do to a case. I cannot see how you can say that the Register of Interests is not a proceeding in Parliament.
Q343 Lord Carlisle of Bucklow: No.
Professor Sir William McKay: But if it is a proceeding in Parliament, as you say, my Lord, it is there, it is a fact or not, and the courts can perfectly readily take account of it. Even if we have to invent some machinery to get it in front of them, as we used to have machinery to get Hansard in front of the courts by petition.
Q344 Vera Baird: Could Hansard be used in evidence to show that the Member of Parliament was there, ie perhaps an alibi?
Professor Sir William McKay: I have no knowledge of any such case. I am pleased to say before I retired I did not have to answer the question. One's instinct is yes, of course, the Member who is accused of burglary that night was speaking in the House of Commons. That must be right.
Q345 Baroness Whitaker: The clerks whom you have quoted I think were just in Australia. I just wondered if your clerk discourse included the Clerk of the Parliament of South Africa because they have a new Corruption Act, although we have not seen it, and perhaps they have dealt with this problem in some way.
Professor Sir William McKay: I plead ignorance, I am sorry. I have not had that much active contact with the South Africans on this aspect.
Q346 Chairman: Can I just ask a different question. How does the Parliamentary Commissioner for Standards fit into this? How would he fit in if Article 9 went? If in the course of a hearing of misconduct by a Member corruption raises its head, what does he do about it? Does he refer it to the police or does he investigate it?
Professor Sir William McKay: I think the answer, and the Committee will wish to confirm this, was given by Sir Gordon Downey who said if he came across something criminal he would report it to the committee and the police and the committee would not proceed if there was some criminal charge potentially to be brought.
Q347 Chairman: An allegation of corruption would be criminal, so he would not investigate it?
Professor Sir William McKay: He would put the brake on.
Chairman: Thank you. Would any of my colleagues like to follow that up? Sir William, we are very grateful to you. With your unrivalled experience of the Commons and various matters it has been very, very helpful to have you here. Thank you very much.