Draft Bribery Bill - Joint Committee on the Draft Bribery Bill

Draft Bribery Bill - Joint Committee on the Draft Bribery Bill Contents

Memorandum submitted by the Clerk of the House of Commons (BB 09)

INTRODUCTION

1. This memorandum is sent in response to the Committee's request for evidence on privilege aspects of the Draft Bribery Bill currently being examined. The paper concentrates on the particular provisions of Clause 15 of the draft Bill, dealing with admissibility of evidence against a Member or other person protected by parliamentary privilege for a bribery offence.

2. The crux of the matter is a public interest consideration—namely whether the proposal impedes Parliament in performing its legitimate function by allowing the words or conduct of an MP or peer to be admissible in proceedings for a bribery offence where the MP or peer is a defendant or co-defendant notwithstanding Article IX of the Bill of Rights. The general principle that a criminal offence should be applicable to Members (or anyone protected by parliamentary privilege) is taken as a given. It accords with the long-established practice that privilege has never been intended to set Members above the law.

BACKGROUND

3. In 1695 the Commons resolved that "the offer of money or other advantage to any Member of Parliament for the promoting of any matter whatsoever, depending or to be transacted in Parliament, is a high crime and misdemeanour".[70] On the behaviour of Members when offered such a bribe, Erskine May states that "The acceptance by a Member of either House of a bribe to influence him in his conduct as a Member, or of any fee, compensation or reward in connection with the promotion of or opposition to any bill, resolution, matter or thing submitted or intended to be submitted to either House, or to a committee, is a contempt".[71] Over the years, Members of the Commons found guilty of such offences have been expelled.[72] However, there have been few such cases in total and very few indeed in modern times.[73]

4. For some time, at least since the Salmon Commission report of 1976, there has been concern that Members of Parliament are not subject to the general laws on bribery when acting in a parliamentary capacity. The Salmon Commission concluded that bribery of a Member of either House was not a statutory offence since the Houses of Parliament were not "public bodies" for the purposes of the Public Bodies Corrupt Practices Act 1889.[74] It also concluded that it was not a common law offence because membership of parliament did not constitute public office for the purposes of the common law.[75] This latter finding was challenged in 1992 when a Member of the Commons was prosecuted for this offence and the judge ruled that it would be a common law offence for a Member of the House to accept a bribe as well as for anyone to make a corrupt offer and that no privilege under Article 9 could be claimed.[76] The Member concerned, however, was acquitted when the Crown offered no evidence so the judge's ruling was not tested. It is worth noting that the case involved acts by the Member outside proceedings of Parliament, which therefore did not invoke article IX of the Bill of Rights.

5. The Salmon Commission recommended that Parliament should consider bringing corruption, bribery and attempted bribery of a Member of Parliament acting in his parliamentary capacity within the scope of the criminal law. Since then, several reports and consultations have reached similar conclusions, notably the Nolan Committee on Standards of Conduct in Public Life (1995) and the Joint Committee on Parliamentary Privilege (1999).[77]

6. In 2003 the Government published a draft Corruption Bill which proposed that Members should be brought within the scope of the statutory offence of corruption and that article IX should not apply in relation to proceedings for such an offence. The relevant clause of the Bill (Clause 12) was drafted in wide terms as follows:

7. The Joint Committee which examined the draft Bill recommended:

8. The Government response put the arguments against the Committee's view but concluded that "We would particularly welcome the chance to look at the concerns raised by the Joint Committee in more detail".[80]

THE CURRENT DRAFT BILL

9. Following the publication of a report from the Law Commission on the reform of bribery in November 2008, the Government has come forward with the draft bribery Bill in the current session. The Law Commission did not directly address the position of Members of Parliament or mention parliamentary privilege. Clause 15 of the Draft Bill provides that:

"(1) No enactment or rule of law preventing proceedings in Parliament being impeached or questioned in any court or place out of Parliament is to prevent any evidence of:

(a)words spoken by a member of either House of Parliament in proceedings in Parliament, or

(b)any other conduct of such a member in such proceedings,

from being admissible in proceedings against the member for a bribery offence or in related proceedings.

(2) In subsection (1) 'related proceedings', in relation to proceedings against a member of either House of Parliament for a bribery offence, means proceedings against any other person for a bribery offence which arise out of the same facts as the proceedings against the member.

(3) In this section 'bribery offence' means:

(a)an offence under this Act,

(b)attempting or conspiring to commit an offence under this Act,

(c)an offence under Part 2 of the Serious Crime Act 2007 (c.27) (encouraging or assisting crime) in relation to an offence under this Act, or

ISSUES ARISING

10. The Government response to the Joint Committee on the Draft Corruption Bill accepted that "This is a delicate and complex constitutional issue".[82] Article IX of the Bill of Rights provides that "proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament". Unless this right is waived in the case of Members charged with taking bribes for actions performed within Parliament or in the case of those offering such bribes, there are restrictions on the evidence that may be offered in any trial. To accept any waiver from article IX, however, is an encroachment upon the rights of Parliament which has to be convincingly demonstrated to be justified.

11. There have been two substantial attempts by parliamentary committees in recent years to analyse and resolve the difficulties in balancing parliamentary privilege against effective prosecution of a serious crime.

Joint Committee on Parliamentary Privilege

12. In 1999 the first report from the Joint Committee on Parliamentary Privilege set out the dilemma. It concluded that the prevention of questioning of proceedings in Parliament under article IX could have the consequence that "the prosecution might lack evidence necessary for a successful prosecution, or the defendant might be unable to call evidence in his defence. Either way, if that were to happen, a proper trial of the Member might not be possible. For the same reason a person who offers a bribe may also be beyond the reach of the courts".[83] However, "Any change in the law which brings the parliamentary activities of the Members of both Houses within the scope of the statute law on corruption … will mean that, contrary to article 9, evidence could be given in court which questions proceedings in Parliament" and that "If corrupt conduct by a Member is established, the Member will be liable for punishment primarily by the courts rather than by Parliament".[84]

13. The Joint Committee considered possible solutions to the need they perceived for "a fair, workable and publicly acceptable system for dealing with corruption or allegations of corruption of Members of each House".[85] They examined various options which would in essence either strengthen Parliament's own jurisdiction and make it generally acceptable, hand over jurisdiction to the courts or divide the responsibilities between the courts and Parliament. There were drawbacks to all the options which can be summarised as below:

Self-regulation by Parliament

Criminal prosecution in the courts

Joint responsibility

14. The Joint Committee recommended that the only credible option, despite its disadvantages, was to bring Members of both Houses within the criminal law of bribery by legislation containing a provision to the effect that evidence relating to an offence committed or alleged to be committed under the relevant sections shall be admissible notwithstanding article IX. They regarded this as involving "only a minimal encroachment upon the territory safeguarded by article 9" because of the small number of cases likely to arise involving Members and the even smaller number of those cases which will require proceedings in Parliament to be questioned.[88] The Joint Committee also briefly addressed the practical implications of this recommendation for standards and recommended that both Houses should take steps to ensure that the rules and conventions concerning standards of conduct were in a readily accessible form capable of being understood outside Parliament as well as within. It also noted that there would be implications for disciplinary proceedings in Parliament relating to the same offence committed by a Member but made no recommendations in this regard.[89]

Joint Committee on the Draft Corruption Bill

15. Four years later, in 2003, the Joint Committee on the Draft Corruption Bill took as a starting point that Members of Parliament and peers should be subject to the same corruption law as everyone else, a principle previously accepted by the Joint Committee.[90] They therefore concentrated on the provisions of Clause 12 to the draft Bill which sought to remove evidential difficulties in prosecuting MPs and peers.[91]

16. The Joint Committee was concerned about the impact of Clause 12 upon freedom of speech in parliamentary proceedings, arguing that "there is a public interest in ensuring that the fullest facts are disclosed in Parliament and that no one—witness, Member or minister—should feel inhibited by the prospect of what he or she says being subsequently questioned in court".[92] In particular, they concluded that the Joint Committee on Parliamentary Privilege had not intended witnesses to be questioned in court on what they had said in Parliament and that Clause 12 should be narrowed to exclude witnesses and to include only the words or actions of an MP or peer in a case where he is a defendant, with the same words and action being admissible for or against all co-defendants in respect of corruption offences based on the same facts.[93] This position was supported by the Liaison Committee which was concerned about the impact of the proposed Clause 12 upon witnesses before select committees.

Necessity and proportionality

17. The Joint Committee on Parliamentary Privilege made their recommendations expressly in the shadow of recent cases and allegations such as the Greenway case of 1992 and the "cash for questions" case of 1994, identifying both a need for clarification of the law and "public perception that something is wrong which needs to be put right".[94] They asserted, however, that "We are confident there are very few instances of corruption involving Members of Parliament". This was supported by the Joint Committee on the Draft Corruption Bill which commented that it had "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".[95]

18. On the necessity of what was then Clause 12 of the Draft Corruption Bill, the Joint Committee was "persuaded that some changes in the exclusion of parliamentary proceedings from consideration by the courts has to be accepted if the prosecution of an MP or peer for corruption is to be achieved",[96] but it also heard evidence that the Clause as drafted, disapplying article IX, was not necessary to ensure its aim of prosecuting MPs and peers. For example, in Australia evidence of parliamentary proceedings can be cited in court as long as the participants in those proceedings are not exposed to criminal liability. In the United States of America the Supreme Court decided, in US v Brewster, that "while a prosecution might not inquire into legislative acts or their motivation, taking or agreeing to take money to act in a certain way when participating in a legislative act cannot itself be a legislative act".[97] The evidence from the Brewster case concludes that "The guilty act is the acceptance of the bribe, and that is complete without performance of the (legislative) act or 'proceeding in Parliament'—which the bribe is intended to procure or influence."[98] The Director of Public Prosecutions doubted if comment in debate would ever be admissible in a criminal trial as evidence since "saying things about people is not evidence. Facts are evidence."[99]

19. The Committee also heard evidence that the Clause would have implications for proceedings in Parliament beyond the type of cases under consideration. A former Clerk of the House, Sir William McKay, expressed considerable disquiet over the detrimental impact of the existence of the Clause and disapplication of article IX on the willingness of Members to speak freely in Parliament.[100] He also argued that it could have consequences in other circumstances where Parliament wanted to rely upon article IX: "If the protection of Article IX is broken into, your position is very much weaker than if you have untouched protection".[101]

CONCLUSIONS

20. The proposal of Clause 15 of the Draft Bill is a step with significant constitutional implications. Even if one sees the balance of interest as needing a restriction of the kind it implies on parliamentary privilege, that must be recognised as a serious matter which I would suggest should only be taken subject to a number of conditions.

21. The first of these would be a commitment by the Government to proceed with a Parliamentary Privileges Act, advocated by the Joint Committee which would clarify the application of provisions of Article IX; define Parliament's control of its internal affairs and replace existing statute on the reporting of parliamentary proceedings.[102] 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.[103] 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. The Australian model for a Parliamentary Privileges Act is at hand for adaptation to British circumstances.

22. The second condition would be that the proposal contained in Clause 15 be put before each House in the form of a substantive motion. Given the significance of what is being proposed, it would seem reasonable that each House should be given an opportunity to agree to the principle prior to being invited to consider the provision in a Bill. The public interest balance—between unfettered freedom of speech in Parliament and dispelling any notion that "the only place where one could lawfully act in corrupt ways is in the Houses of Parliament"[104] must be thoroughly aired in Parliament itself. Debate and decision based merely on the Question that the Clause stand part, which could take place in a Public Bill Committee in the Commons, seems insufficient a method of deciding a matter of such significance.

June 2009

70 CJ (1693-97) 331 Back

71 Erskine May, 23rd edition, p132 Back

72 Ibid, p133n1 Back

73 Ibid, p133 Back

74 Ibid, 134 Back

75 The common law of corruption applies to MPs in Canada and Australia. A W Bradley & K D Ewing, Constitutional and Administrative Law, 12th edition 1997, p 251 Back

76 Erskine May, 23rd edition, p 134. Also see G Zellick Bribery of Members of Parliament and the Criminal Law Public Law Spring 1979 page 31-58 Back

77 See HL157, HC 705 (2002-03), p5 for a list of relevant papers up to July 2003 Back

78 Bribery Draft Legislation Cm 5777, page 24 Back

79 HL 157, HC 705 (2002-03), para 134-5 Back

80 Cm 6086, para 20 Back