Additional Memorandum submitted by Ministry
of Justice (BB 44)
NOTE ON PARLIAMENTARY PRIVILEGE
INTRODUCTION
1. Clause 15 of the draft Bribery Bill
has the effect of ensuring that the words or conduct of an MP
or Peer in Parliamentary proceedings are admissible in proceedings
for a bribery offence under the Bill where that MP or Peer is
a defendant notwithstanding any enactment or rule of law (including
Article 9 of the Bill of Rights 1689) which would prevent
those words or conduct from being admissible. The words or conduct
would also be admissible against any other person charged with
a bribery offence arising out of the same facts as the proceedings
against the MP or Peer. The clause implements the recommendations
of the Joint Committee on Parliamentary Privilege (HL Paper 43 and
HC214, March 1999, paragraph 167) and the Joint Committee on the
draft Corruption Bill (HL paper 157 and HC 705, 31 July
2003, paragraph 134).
2. This note sets out the policy objective
of the draft Clause and the background to the development of Government
policy in this area.
OVERARCHING POLICY
OBJECTIVE
3. There are two separate issues involved
in the consideration of Clause 15. The first and more fundamental
issue is the liability of members of Parliament for the criminal
law of bribery. Bribery of a member of either House is contempt
of Parliament and as such can be punished by the House. It is
generally accepted though that members cannot be liable for the
current statutory corruption offences as neither House is a "public
body" for the purposes of the Public Bodies Corrupt Practices
Act 1889 Act and members are not "agents" for the
purposes of the Prevention of Corruption Act 1906 Act. There
is a degree of uncertainty around whether a member can be liable
for the common law offence of bribery, which applies to persons
"in a public office". A 1975 Royal Commission concluded
that the common law offence of bribery would not apply to members
whereas the Nolan Committee in 1995 thought it "quite
likely" that the common law would cover bribes taken by members.
An MP (Harry Greenaway) was prosecuted for the common law offence
of bribery in 1992. The trial judge ruled the common law offence
did apply to MPs but, as the MP was ultimately acquitted, the
point was not tested at the Court of Appeal. The 1999 Joint
Committee on Parliamentary Privilege recommended that Members
of both Houses should be brought within the statutory law of bribery.
4. The Government agrees with the 1999 Committee
and considers it important that Members of both Houses are brought
within the scope of the statutory law on bribery. The offences
in the Bill clearly apply to members of both Houses by implication.
Clause 15 would not serve any purpose unless members of the
both Houses of Parliament are subject to the Bill's provisions.
5. The second issue, and the focus of Clause
15, is the effect of the principle of Parliamentary Privilege
(enshrined in Article 9 of the Bill of Rights) as an impediment
to effective prosecutions for bribery and the manner in which
the Bill should address this problem. Criminal proceedings may
prove unfeasible if either the prosecution or defence seek to
rely on evidence falling within the protection of Article 9 of
the Bill of Rights 1689 (which prevents proceedings in Parliament
being impeached or questioned in court). Article 9 may therefore
have the effect of providing immunity from prosecution for an
MP or Peer in cases where evidence of their words or conduct in
Parliamentary proceedings is essential for establishing one or
more elements of the offence. Bribery is a serious offence and,
in line with the recommendations of the Joint Committees in 1999 and
2003, the Government considers that lifting privilege to an appropriate
extent is justified by the overriding concern to ensure that privilege
does not impede evidence being adduced, either by the prosecution
or the defence. By the same token the requirements of criminal
justice must also take account of the public interest in preserving
Parliamentary freedom of speech.
BACKGROUND AND
DEVELOPMENT OF
THE PROPOSALS
6. The 1999 Joint Committee on Parliamentary
Privilege recommended that the legislation bringing Members within
the criminal law of bribery should contain "a provision to
the effect that evidence relating to an offence….shall be
admissible notwithstanding article 9 [of the Bill of Rights
1688]". This recommendation was accepted by the Government.
Although the Joint Committee also suggested that its legislative
recommendations should form a new Parliamentary Privilege Act,
it added that "we assume our recommendations on bribery will
be incorporated into the [Government's] proposed criminal legislation".
In its report, the Committee observed that a trial could encounter
insuperable difficulty should either side wish to call evidence
falling within Article 9 of the Bill of Rights. This was
because the prosecution might lack the evidence necessary for
a successful prosecution, or the defendant might be unable to
call evidence needed for his defence. The Committee commented
that, either way, if that were to happen, a proper trial of the
member might not be possible and for the same reason a person
who offers a bribe may also be beyond the reach of the courts.
7. The report of the 1999 Joint Committee
noted that uncertainty existed over what is covered by "Parliamentary
proceedings" and recommended that it should be clarified
and defined. However, it noted that Article 9 protects activities
that are recognisably part of the formal collegiate activities
of Parliament; that it "protects a person from legal liability
for words spoken or things done in the course of, or for the purposes
of or incidental to, any proceedings in Parliament"; and
that it "applies to officers of Parliament and non-members
who participate in proceedings in Parliament, such as witnesses
giving evidence to a committee of one of the Houses". The
Joint Committee also noted that this immunity is "comprehensive
and absolute" and "not excluded by the presence of malice
or fraudulent purpose". Article 9 was said "to
protect the Member who knows what he is saying is untrue as much
as the Member who acts honestly and responsibly".
8. The offences in the Government's 2003 draft
Corruption Bill were based on the agent/principal construct. For
these purposes an MP of either House of Parliament qualified as
an "agent". The Government took the view that bribery
is a serious offence and the public interest lay in removing any
impediment to a prosecution. The Bill therefore, as presented
to the Joint Committee, provided for the unlimited removal of
Parliamentary Privilege for the offences in the Bill.
9. The Joint Committee that undertook pre-legislative
scrutiny of the 2003 Bill agreed that in order for the prosecution
of an MP or Peer for corruption to be achieved, there would need
to be some provision in respect of Article 9. The Joint Committee
noted that the Government's Bill would have made MPs/Peers and
others liable to questioning about statements or evidence given
in Parliament even where the person whose words were in question
was not the defendant and did not support the unlimited removal
of Parliamentary Privilege for the offences in the Bill. The Committee
recommended instead that it should be removed only in respect
of the words or actions of an MP or peer in a case where he is
the defendant; and that, to the extent that such evidence is admissible
for or against him, it should also be admissible in respect of
any co-defendants. This, the Committee argued, was the intention
of the original recommendation of the 1999 Joint Committee
on Parliamentary Privilege. In their view, removing the protection
of Article 9 might inhibit a Member or witness from commenting
on cases in which there was a possibility that they might be questioned
in court, even though there was no suggestion that they themselves
were corrupt. This would represent an unreasonable infringement
of the protection of freedom of speech under Article 9. The balance
of the public interest therefore, in its view, rested in restricting
the removal of Parliamentary Privilege to essential cases only.
10. The Government announced in its 2005 Consultation
Paper on reform of the bribery laws that it accepted the Joint
Committee's recommendation, and the Summary of Responses and Next
Steps, published in March 2007, confirmed that "we think
this strikes the right balance between the desirability of lessening
evidential bars to prosecution and the need to ensure there is
no impediment to freedom of speech in Parliament".
11. Evidence from proceedings in Parliament
may be unnecessary in most instances, but it cannot be ruled out
that a conviction may depend on such evidence because it is important
in proving one or more elements of the offence. Although cases
will be very rare, allowing Parliamentary Privilege to protect
a corrupt Member potentially damages the reputation of Parliament
as a whole. The ability to use Parliamentary proceedings in evidence
could also be argued to enhance freedom of speech, by making sure
that a person does not speak in Parliament as a result of a corrupt
deal.
12. Clause 15 of the current draft
Bill seeks to put the 2005 announcement into effect. The
Clause provides for anything said or done by a Member of either
House in Parliament to be admissible against him or her, notwithstanding
any enactment or rule of law (including Article 9 of the
Bill of Rights), in proceedings for bribery. The words or conduct
would also be admissible against any other person charged with
a bribery offence arising out of the same facts as the proceedings
against the MP or Peer.
DEVOLVED ADMINISTRATIONS
13. The position in the devolved assemblies
differs from the Westminster Parliament in that there is no concept
of Parliamentary Privilege as understood by reference to the Bill
of Rights. The only applicable privileges are those conferred
by or under their relevant establishing Acts (Scotland Act 1998,
Northern Ireland Act 1998; Government of Wales Act 2006). All
the Acts provide for statements in proceedings to be absolutely
privileged for the purposes of the law of defamation. The Acts
relating to Scotland and Wales explicitly provide that the Scottish
Parliament and Welsh Assembly are public bodies for the purposes
of the statutory corruption offences, meaning that members of
those bodies can be liable for those offences.
June 2009
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