13 PRIVILEGE
Background
204. Parliamentary privilege is an expression of
the principle that Parliament has the right to control all aspects
of its own affairs. Just as, once an Act has been passed, its
interpretation and application is properly left to the courts,
so the courts do not seek to interfere in the parliamentary proceedings
by which a law is enacted. Free speech within Parliament is one
of the protections offered by privilege. This is set out in Article
IX of the Bill of Rights 1689, which states that "freedom
of speech and debates or proceedings in Parliament ought not to
be impeached or questioned in any court or place out of Parliament".
205. Unlike in some continental jurisdictions where
privilege attaches to Members themselves, in this country Article
IX of the Bill of Rights represents a collective privilege for
Parliament and is not intended to protect Members from the criminal
law. As a result of historical accident, however, Members are
exempted from the current statutory corruption offences. This
is because neither the House of Commons nor the House of Lords
is a public body for the purposes of the Public Bodies Corrupt
Practices Act 1889 or the Prevention of Corruption Act 1906.
By contrast, the common law of bribery has been generally held
to apply to Members of Parliament, following a decision by Buckley
J in relation to allegations of corruption against a Member, Harry
Greenway, in 1992 (although this decision was not tested on appeal).
The draft Bribery Bill rectifies this anomaly by applying the
proposed bribery offences to Members.
206. Under the provisions of the draft Bribery
Bill, Members of both Houses of Parliament can be convicted of
bribery. This is entirely proper: bribery is a very serious offence
and Members should be subject to the same criminal laws as everyone
else.
207. There is some concern, however, that convictions
for bribery might nonetheless be prevented where there is a need
for the prosecution to rely on evidence in the form of parliamentary
proceedings, which are protected by privilege. In a debate on
the Parliamentary Standards Bill, introduced into the House of
Commons on 23 June 2009, the Secretary of State for Justice told
a Committee of the Whole House that "there is a general acceptance
that prosecuting a Member of Parliament for bribery will necessitate
a carve-out of elements of the Bill of Rights".[313]
This is a position that is supported by the Council of Europe's
Group of States against Corruption (GRECO), which notes in written
evidence that "the only issue that appears to exist is Article
9 of the Bill of Rights, which prevents evidence being given in
court that questions proceedings in Westminster [… we therefore]
recommended that corruption offences be exempted from the application
of Article 9 of the Bill of Rights".[314]
Clause 15 of the draft Bill attempts to remove any evidential
difficulty by waiving the protections of privilege afforded to
Members of Parliament who are accused or co-accused of bribery
offences. This would mean that proceedings in Parliament relating
the "words or conduct" of accused or co-accused Members
could be used as evidence in court.
208. No precise definition of a "proceeding
in Parliament" exists. Since, by virtue of its inclusion
in the Bill of Rights the term is part of statute law, it is the
courts which interpret its meaning with reference to particular
cases. It is generally taken to include debates on the floor of
the House and evidence taken by select committees, but there are
many grey areas, including, for example, correspondence between
Members and others.[315]
209. In a well-known case in the United States, US
v Brewster, a distinction was made between the taking of a
bribe, which was not held to be a proceeding in Parliament, and
the act that the bribe was intended to influence, namely: "it
is the taking of the bribe, and not the performance of any illicit
compact that is the criminal act under the statute. The speech
or debate Clause interposes no obstacle to this type of prosecution.
The guilty act is the acceptance of the bribe, and that is complete
without performance".[316]
The same point was made to us in oral evidence by the Clerk of
the House of Commons, who referred us to evidence given in 2003
by the then Director of Prosecutions to the Joint Committee on
the draft Corruption Bill: "'saying things about people is
not evidence; facts are evidence'".[317]
Similarly, in evidence to the Commons Justice Select Committee,
Speaker's Counsel said that "I think it is true to say in
the law on corruption in this country you do not have to prove
that the corrupt design was carried out, you simply have to show
it was entered into. As far as corruption is concerned I would
have thought in many cases it simply is not necessary - it is
nice for the prosecution but it is not necessary - to adduce evidence
of what happened in the proceedings".[318]
Nevertheless, we acknowledge concerns that privilege could in
some circumstances prevent the prosecution from relying on evidence
which may be relevant to determining whether a Member of either
House has attempted to alter the course of proceedings in Parliament
in return for payment or other advantage.
210. Reference to things said in Parliament is not
entirely precluded by Article IX. There is a theoretical distinction
to be drawn between the simple citation of a debate or other parliamentary
proceeding in court, which would be allowed, and the attempt to
question or impeach it, which would not be. However, in practice
this distinction is difficult to maintain since material cited
by one party in court is likely to be questioned by the opposing
party.
Evidence of need for legislation
on privilege
211. Like the 2003 Joint Committee on the draft Corruption
Bill before us, we endeavoured to test the accuracy of the claim
that waiving privilege would be "necessary" in order
to facilitate prosecutions in some bribery cases.[319]
The 2003 Joint Committee observed that:
The Committee has received little evidence that
any MPs and peers have avoided prosecution for corruption either
because of their status or because parliamentary proceedings cannot
be questioned in court. As the Joint Committee on Parliamentary
Privilege noted in 1999, "there are very few instances of
corruption involving Members of Parliament". The Attorney
General could not identify any occasions in which MPs or peers
have escaped prosecution because of the provisions of Article
IX of the Bill of Rights 1689. We have been told there have been
very few cases in other comparable jurisdictions.[320]
This point was reiterated in oral evidence to us
by the Clerk of the House of Commons and by the Attorney General,
who told us that "there has been no recent case of an MP
or a peer seeking to behave in a way that was sanctionable with
parliamentary privilege being an impediment to pursuing those
issues".[321]
212. It is far from clear that privilege has proved
to be an impediment to conviction even in cases where it has been
cited as such. Earlier this year the police announced that they
would not launch a full investigation into a serious complaint
against four Peers, which arose out of allegations made in the
Sunday Times on 25 January 2009 following a 'sting' operation
by undercover journalists. One of two reasons cited for this was
that "there are very clear difficulties in gathering and
adducing evidence in these circumstances in the context of Parliamentary
Privilege".[322]
In written evidence the Clerk of the Parliaments states that
"none of the peers offered themselves to table amendments,
or engage in any activities which would be covered by parliamentary
privilege […] parliamentary privilege had little or no bearing
on the case. It is difficult to see either how parliamentary privilege
could have impeded a police investigation, or how clause 15 of
the Draft Bill would have assisted such an investigation or any
subsequent prosecution".[323]
213. A Ministry of Justice official raised the perceived
lack of demand for parliamentary proceedings to be used as evidence
in court to justify the inclusion of clause 15 in the draft bill,
saying that "we think it is going to be the very rare circumstance
in which we will actually need to lift parliamentary privilege.
On that basis we think the very narrow lifting is justified,
because it is unlikely to happen".[324]
Similarly, in written evidence to us, the Joint Committee on
Human Rights notes that "in the light of the limited number
of cases where bribery might be alleged, in our view, the limited
impact on privilege is likely to be proportionate to the beneficial
impact of these proposals on public conduct, including the conduct
of MPs and Peers".[325]
214. The opposite argument can be made on the same
grounds, namely that because no occasion on which there was a
need to rely on proceedings in Parliament to secure a conviction
has been identified, no case can be made for setting aside parliamentary
privilege. In 2003 a former Clerk of the House of Commons compared
a similar provision in the draft Corruption Bill to using "a
mighty sledgehammer to crack an almost invisible nut".[326]
The public interest test
215. The different conclusions reached by witnesses
on the question of need rely on differing calibrations of a public
interest test which attempts to weigh the benefits to the public
at large of free speech in Parliament against the need to secure
convictions of the corrupt. This test was considered in 1999 by
a Joint Committee on Parliamentary Privilege, which concluded
that a "minimal encroachment" on parliamentary privilege
was appropriate to address the "serious and insidious"
offence of bribery.[327]
In oral evidence to us, the Clerk of the Parliaments said that,
in his view, "the balance comes down in favour of allowing
proceedings to take place in accordance with clause 15".[328]
The same conclusion was reached in 2003 by the Joint Committee
on the draft Corruption Bill.
216. The need to regain and retain public confidence
in the integrity of Parliament is one of the factors cited by
witnesses who have reached the above view. The 2003 Joint Committee
noted that "Parliament should be aware of the implications
of legislating in ways which make it appear as though the only
place where one could lawfully act in corrupt ways is in the Houses
of Parliament".[329]
The Attorney General told us that "public confidence is
of the utmost importance if we are going to be able to have a
democratic system which people respect. It would be a very difficult
thing indeed if […] there was evidence which [was] available
which might assist in a significant way a prosecution, but, because
of parliamentary privilege, we were debarred from using it".[330]
217. The term "privilege" implies a benefit
to Members of Parliament that is unavailable to everyone else.
In fact, as the Clerk of the House of Commons explained to the
Commons Justice Select Committee, privilege is intended as a protection
for the wider public:
the main reason why privilege is important is
what, on the continent, is called 'functional immunity'. Parliaments
have to be free, and members have to be free, to debate things
without fear that matters that they might raise on behalf of their
constituents might then be challengeable in the courts. […]
If there was not that freedom, Parliament could not really function
effectively.[331]
He used this as the basis for arguing that clause
15 of the draft bill should be excluded. Similarly, in a debate
in the Commons on the Parliamentary Standards Bill, Gerald Howarth
MP said that:
If we understand the significance of parliamentary
sovereignty and the public do not, and we knowingly impair it,
we will damage hugely the interests of our constituents and our
ability to serve them. It is nothing to do with protecting us,
but with safeguarding the fundamental rights of the British people
and our powers in this place to represent them. We must not allow
the Bill to impair that fundamental principle. If we do so, we
do grave damage to our constituents.[332]
218. Some witnesses have argued that even the removal
of privilege in certain specified cases will have a disproportionately
inhibitive effect on all parliamentary proceedings. In evidence
to the 2003 Joint Committee on the draft Corruption Bill, Sir
William Mackay said that if "the motives of a Member of either
House in making a speech in the Chamber came under scrutiny in
a court, […] 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".[333]
Jacqy Sharpe, Principal Clerk of the Table Office in the House
of Commons made the same point in relation to witnesses appearing
before select committees: "in what witnesses say before Parliament
they do deserve protection so that they can feel they can say
freely what they believe and know that they will not have any
legal consequences of that".[334]
The Clerk of the House of Commons told the Commons Justice Select
Committee that the "chilling effect" of a privilege
waiver would also "hamper the ability of House officials
to give advice to Members".[335]
It is important to note here that none of these witnesses questioned
the seriousness of bribery offences, or the need to secure convictions
of the corrupt. Rather, they were concerned that the measures
proposed were disproportionate to the hypothetical evidential
problem in relation to the new offences.
The compromise in 2003
219. On this matter views on both sides are frequently
expressed in very strong terms although, as the Secretary of State
pointed out, "these issues are not black and white: they
are matters of judgement".[336]
The 2003 Joint Committee on the draft Corruption Bill attempted
to balance competing public interests by recommending that, whilst
privilege should be waived in relation to Members who were defendants
or co-defendants in corruption cases, "the balance of public
interest" meant that privilege should remain intact in relation
to other Members and witnesses.[337]
This position was supported by the Liaison Committee in the House
of Commons, which was concerned to protect the rights of witnesses
before select committees in particular. The Government eventually
decided in favour of the Joint Committee's recommendation and
clause 15 of the current draft Bill applies the waiver of privilege
only in the case of a Member who is a defendant or co-defendant
in a bribery case. Proceedings in Parliament relating to witnesses
and other Members would retain the protection of privilege.
220. Whilst we understand the delicate balancing
act which led to the compromise recommended by the 2003 Joint
Committee, narrowing the waiver of privilege in the manner that
it suggested would have two undesirable consequences:
a) There would be an imbalance between the
treatment of accused Members on the one hand and other Members
and witnesses on the other. Whereas the words of an accused witness
spoken before a select committee could not be used as evidence
against them, the words of an accused Member could be. Thus clause
15 may not remove all the evidential problems that any removal
of privilege undertakes to address.
b) Accused Members would be unable to rely on
the words of other Members or witnesses spoken during proceedings,
even if they were exculpatory. We sought advice on whether this
constituted a breach of Article 6 of the European Convention on
Human Rights which states that "everyone is entitled to a
fair and public hearing" and goes on to declare that it is
one of the minimum rights of the accused "to examine or have
examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions
as witnesses against him". The Joint Committee on Human Rights
told us that, in its view, "there is a significant risk that
breaches of Article 6 ECHR could arise as a result of the operation
of clause 15".[338]
221. The Attorney General suggested that the possibility
of an unfair trial was an issue which could be addressed by means
of prosecutorial discretion or, if it was too late for that, "it
would be open to the court to stop the case as an abuse of process".[339]
We do not consider that it is satisfactory for a law to be enacted
in the knowledge that it could give rise to breaches of Article
6 of the European Convention on Human Rights with the discretion
of prosecutors as main safety net. This conclusion leaves open
two options: the removal of clause 15 from the draft bill or its
widening, to allow proceedings in relation to any Member or witness
to be used as evidence in bribery cases.
The case for consistency
222. During the course of our proceedings, the Government
introduced its Parliamentary Standards Bill into the Commons.
Clause 10 of the bill as introduced made provision to waive privilege
in relation to the work of a new Independent Parliamentary Standards
Authority, the work of a Commissioner for Parliamentary Investigations
or specific legal proceedings against any Member of the House
of Commons, as follows:
10 Proceedings in Parliament
No enactment or rule of law which prevents proceedings
in Parliament being impeached or questioned in any court or place
out of Parliament is to prevent—
(a) the IPSA from carrying out any of its functions;
(b) the Commissioner from carrying out any of the
Commissioner's functions;
(c) any evidence from being admissible in proceedings
against a member of the House of Commons for an offence under
section 9.[340]
No exception was made in the clause for proceedings
in relation to a witness or non-accused Member and, in that respect,
the clause was more widely drawn than clause 15 of the draft Bribery
Bill.
223. During debate in Commons Committee of the Whole
House on the Parliamentary Standards Bill, the Secretary of State
for Justice reminded the Committee of the need to consider clause
10 in the context of the provisions set out in clause 15 of the
draft Bribery Bill.[341]
The adoption of a consistent approach to the issue of parliamentary
privilege across the statute is important because it reduces the
potential for confusion, particularly on the part of Members and
witnesses, who need to be clearly aware of their position in relation
to Article IX of the Bill of Rights when they are participating
in proceedings in Parliament. The "chilling" effect
of a privilege waiver would be all the more pronounced were any
uncertainty about the scope of the waiver to be introduced. Furthermore,
by legislating inconsistently on the issue of privilege, Parliament
would risk the unnecessarily broad erosion of constitutional principles
by means of competing precedents. Although there have been several
recent attempts to waive privilege in relation to specific offences,
there are many offences for which no curtailment of privilege
has yet been envisaged. Were clause 15 of the draft Bribery Bill
to become law, courts would be able to use parliamentary proceedings
in evidence for bribery offences but not for arguably equally
serious fraud offences, to give one example.
224. In view of the importance of the freedoms
parliamentary privilege is designed to protect, we believe that
attempts to legislate on this matter should be consistent with
each other. Clause 15 of the draft bill is based on the conclusions
of the Joint Committee on the Draft Corruption Bill in 2003, which
was not the case with the Parliamentary Standards Bill as introduced
in the Commons. Inconsistency risks confusion in the operation
and application of the law and could bring about the unnecessarily
broad erosion of fundamental constitutional principles by means
of competing precedents. For this reason we believe it is unacceptable
that the draft Bribery Bill should take a different approach to
privilege from that taken in the Parliamentary Standards Bill,
particularly as the two bills deal with overlapping areas of law.
225. On 1 July, a Committee of the Whole House in
the Commons voted to remove clause 10 of the Parliamentary Standards
Bill. It was subsequently omitted from the Parliamentary Standards
Bill 2009 .Ministers have made clear they will respect the decision
of the House. In order to achieve consistency with the Parliamentary
Standards Bill 2009, we recommend that the Government leave out
clause 15 of the draft Bribery Bill.
226. It is clear that, even if the potential evidential
problems posed by the existence of parliamentary privilege are
not addressed in legislation on bribery and parliamentary standards
there is a substantial body of opinion which demands that that
they are addressed elsewhere. Both the 1999 and 2003 Joint Committees
recommended the introduction of a separate Parliamentary Privileges
Bill to provide a comprehensive code setting out the scope of
privilege. This approach would avoid both the anomaly of parliamentary
privilege being waived in the case of bribery but not of arguably
equally insidious offences and the accidental undermining of the
principle of privilege by means of its steady leaking away. The
argument for such a Bill is made in written evidence by the Clerk
of the House of Commons:
The experience of the Defamation Act of 1996,
intended to address one perceived anomaly of parliamentary privilege,
has led to others. The provision of Section 13 of the Act was
later held to undermine the collective right of the House to immunity
in respect of proceedings by allowing an individual Member to
waive privilege. Other difficulties of a practical nature where
more than one Member was involved led the Joint Committee to recommend
repeal of the Section. Other encroachments on parliamentary privilege
suggest that a piecemeal approach to defining and defending the
Houses' legitimate right to function effectively is no longer
sufficient.[342]
227. A precedent for a Parliamentary Privileges Act
has existed in Australia since 1987. The Clerk of the House of
Commons and the Clerk of the Parliaments supported the case for
such legislation during our inquiry. In early July the Commons
Justice Select Committee reported that "the evidence given
on the merits of having a Parliamentary Privilege Act and consider
that this is an appropriate time for this proposal to be further
considered".[343]
The Secretary of State, on the other hand, told us that "we
do not have a plan for a Parliamentary Privileges Bill",
and the Ministry of Justice notes that the Australian Act is "not
without its critics".[344]
228. The issue of parliamentary privilege has
arisen in relation to several pieces of legislation and draft
legislation in recent years. Legislating in a piecemeal fashion
risks undermining the important constitutional principles of parliamentary
privilege without consciousness of the overall impact of doing
so. This issue was examined in considerable detail by the 1999
Joint Committee on Parliamentary Privilege, which concluded that
a Parliamentary Privileges Act was required. We believe that,
should the Government deem it necessary, such an act would be
the most appropriate place to address the potential evidential
problems in relation to bribery offences.
313 HC Deb, 1 July 2009, column 373 (Jack Straw) Back
314
BB38 Back
315
Erskine May, Parliamentary Practice, 23rd Edition,
p110 Back
316
HL157, HC705 (2002-03), Ev 45, DCB 11, para 26 (United States
v. Brewster, 506 F.2d. 62 (D.C.Cir.1974)) Back
317
Q457, HL157, HC705 (2002-03), Q112 (Sir David Calvert-Smith) Back
318
House of Commons Justice Select Committee, Seventh Report, Session
2008-09, Constitutional Reform and Renewal: Parliamentary Standards
Bill, HC791, Q22 (Michael Carpenter) Back
319
HC Deb, 1 July 2009, column 373 (Jack Straw MP) Back
320
HL157, HC 705 (2002-03), para 105 Back
321
Qq 446 and 649 Back
322
See the Metropolitan Police statement at http://cms.met.police.uk/news/major_operational_announcements/mps_statement_re_lords_allegations.
Back
323
BB11 Back
324
Q612 Back
325
BB61 Back
326
HL157, HC 705 (2002-03), Q234 Back
327
First Report of the Joint Committee on Parliamentary Privilege,
Session 1998-99, HL 43, HC 214, para 167 Back
328
Q451 Back
329
HL157, HC 05 (2002-03), para 118 Back
330
Q649 Back
331
House of Commons Justice Select Committee, Seventh Report, Session
2008-09, Constitutional Reform and Renewal: Parliamentary Standards
Bill, HC791, Q2 (Dr Malcolm Jack) Back
332
HC Deb, 1 July, Column 345 (Gerald Howarth MP) Back
333
HL157, HC 705 (2002-03), Ev 44, para 19 Back
334
Q455 Back
335
House of Commons Justice Select Committee, Seventh Report, Session
2008-09, Constitutional Reform and Renewal: Parliamentary Standards
Bill, HC791, Ev 12 Back
336
Q608 Back
337
HL157, HC 705 (2002-03), para 135 Back
338
BB61 Back
339
BB60 Back
340
The numbering of the clause containing the offences has changed,
following amendments to the Bill in the House of Commons. Back
341
HC Deb, 1 July 2009, Column 400 (Jack Straw MP) Back
342
BB09 Back
343
House of Commons Justice Select Committee, Seventh Report, Session
2008-09, Constitutional Reform and Renewal: Parliamentary Standards
Bill, HC791, para 6 Back
344
Q607 Back
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