Memorandum submitted by the Clerk of the
Parliaments (BB 11)
1. This memorandum is sent in response to the
Committee's request for evidence on privilege aspects of the Draft
Bribery Bill. It supplements the memorandum sent by the Clerk
of the House of Commons. I wholly endorse the content of his memorandum,
in particular his suggestion that the Government should be invited
to make a commitment to proceed with a Parliamentary Privileges
Act, as advocated by the Joint Committee on Parliamentary Privilege
in 1999.
2. I would like to add one detailed comment on the
Clerk of the House's memorandum. In setting out the background
to the current proposal he mentions a resolution of the House
of Commons in 1695, 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". I should point out that while the House of
Lords has no comparable resolution, bribery of a peer would be
regarded as a contempt in the same way as bribery of a Member
of the Commons. This is clear in the words taken from Erskine
May, 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".
3. In the remainder of this memorandum,
I focus on a number practical issues surrounding the Draft Bill,
with particular reference to recent events in the House of Lords.
4. As members of the Joint Committee will
be aware, the Draft Bribery Bill was published while the House
of Lords Committee for Privileges, through its Sub-Committee on
Lords' Interests, was investigating a serious complaint against
four peers, which arose out of allegations made in the Sunday
Times on 25 January 2009. This in turn followed a "sting"
operation by undercover journalists, similar to that which led
to the "cash for questions" case in the House of Commons
in 1994.
5. Shortly after the allegations appeared
a Member of the House of Commons requested that the police examine
them. The decision of the police not to launch a full investigation
was announced on 11 February.[105]
Explaining this decision, the police stated that "the application
of the criminal law to members of the House of Lords in the circumstances
that have arisen here is far from clear. In addition, there are
very clear difficulties in gathering and adducing evidence in
these circumstances in the context of Parliamentary Privilege".[106]
6. The first difficulty faced by the police
was clearly legitimate, and has been confronted in the present
Draft Bill. However, the second difficulty, that of parliamentary
privilege, is less persuasive. In this particular case, none of
the peers offered themselves to table amendments, or engage in
any activities which would be covered by parliamentary privilege.
Instead the emphasis was on behind the scenes lobbying, setting
up meetings, and so on. In other words, 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.
7. There is a further consideration. The
Committee for Privileges report on the four peers was published
on 14 May, and agreed by the House of Lords on 20 May.[107]
The Committee found that even though no money had changed hands,
two of the peers had expressed clear willingness to exercise improper
parliamentary influence in return for financial inducement (in
other words, to breach the "no paid advocacy rule"),
and that in so doing they had breached paragraph 4(b) of the House
of Lords Code of Conduct, which requires peers to "act always
on their personal honour".
8. It is unclear whether the conduct of
the sort described in the Committee for Privileges report would
necessarily bring peers within the ambit of the proposed offence
of bribery, as set out in clauses 1 to 3 of the Draft Bill. It
could certainly be argued that a breach of the Code of Conduct's
prohibition on paid advocacy, even to the extent of an expression
of "clear willingness" to engage in paid advocacy, would
in itself constitute an offence as described in the Draft Bill.
9. However, it does not appear that either
the police or the courts could take cognisance of any such finding
by a Committee of the House. The Joint Committee on Parliamentary
Privilege asserted that "it really goes without saying that,
on a charge of corruption, the court must be able to take into
account compliance with these obligations and restrictions [in
the Code of Conduct] when deciding whether a member's intention
was corrupt".[108]
It is not clear that the Draft Bill in fact achieves this, given
that the Code of Conduct is itself the product of a resolution
of the House and therefore subject to parliamentary privilege;
yet it falls outside the scope of the modification of Article
IX contained in clause 15. Similarly, the findings of select committees,
such as the Committee for Privileges, fall outside the scope of
clause 15.
10. I suggest that the Joint Committee might
wish to seek the Government's views on the practical effect of
the provisions in the Draft Bill on such cases. In particular,
the Joint Committee could seek clarity from the Government on
how the offence described in clauses 1 to 3 of the Draft Bill
would relate to the provisions of the Codes of Conduct adopted
by the two Houses. The Joint Committee may also wish to ask the
Government for an explanation of the ways in which the modification
of Article IX contained in clause 15 would assist police investigations
or prosecutions.
June 2009
105 See HL Deb, 11 February 2009, col 1120. Back
106
See the Metropolitan Police statement on
http://cms.met.police.uk/news/major_operational_announcements/mps_statement_re_lords_allegations. Back
107
Committee for Privileges, 2nd Report, 2008-09, The Conduct
of Lord Snape, Lord Moonie, Lord Truscott and Lord Taylor of Blackburn
(HL Paper 88); HL Deb, 20 May 2009, cols 1394-1418. Back
108
Report of the Joint Committee on Parliamentary Privilege, Session
1998-99 (Paper HL 41/HC 214), paragraph 178. Back
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