Examination of Witnesses (Questions 433
- 439)
WEDNESDAY 10 JUNE 2009
DR MALCOLM
JACK, MS
JACQY SHARPE,
MR MICHAEL
POWNALL AND
DR CHRISTOPHER
JOHNSON
Q433 Chairman: Thank you for coming.
You are very familiar to most of us but not all of us. I wonder
whether we can now go on. You have a list of the questions, have
you not?
Dr Jack: Yes we have, thank you
very much.
Chairman: I know Mr George would like
to ask question 14.
Q434 Mr George: We are tight in terms
of our quorum so please look at question 14 and it will save me
reading it out.
Dr Jack: Thank you very much for
inviting us here this afternoon. I think in question 14 there
are two concepts in an "act of corruption" and "proceedings
in connection with that act". I thought it might be useful
to the Committee if I just said something about proceedings as
we understand them in Parliament first because I think that affects
the whole context of the discussion that we are about to have.
Q435 Chairman: Yes, what are proceedings?
Dr Jack: What are proceedings,
yes, and, if I may, it is always very useful to be reminded of
Article IX of the Bill of Rights which says: "The freedom
of speech in debate or proceedings in Parliament ought not to
be impeached or questioned in any court or place out of Parliament,"
so Article IX makes a distinction between speech, debates and
proceedings. We understand proceedings to be the res acta,
the things that are done, rather than the res dicta, the
things that are said, and that is decisions that the House or
a committee collectively makes on proceedings, on bills, on amendments,
on resolutions, whatever it is, or committees on reports and so
on, so those are the things that the House does and those, strictly
speaking, are the proceedings. Members take part in those proceedings
by voting, by promoting bills, by moving amendments, whatever
it is, but of course I quoted Article IX because clearly the ingenious
authors of Article IX realised that freedom of speech in debates
had to be brought into the equation and if they are not strictly
proceedings they had to be there because that is the way that
Members primarily take part in proceedings, they debate, they
speak, and so Article IX brings in the speaking. Others of course
like officers of the House carry out instructions which proceedings
give rise to and witnesses of course give evidence to select committees.
I just thought it might also be useful, Lord Chairman, I have
in my hands the Parliamentary Privileges Act 1987 from Australia
and there is quite a useful, fairly succinct summary as well,
of proceedings in that Act and it says that: " ... `proceedings
in Parliament' means all words spoken and acts done in the course
of, or for purposes of or incidental to, the transacting of the
business of the House or of a committee ... " Then it goes
on to define some of these things, documents to committees and
so on.
Q436 Chairman: Does it include pre-legislative
scrutiny?
Dr Jack: Yes I think it does Chairman,
yes certainly. So that is a round-up of what proceedings are.
I think the other part of your question which talks about the
act of corruption, I take this to be a reference to the Brewster
case in the US and that is what the contract (if I can call it
that) is, the actual act of corruption, the promise, the passing
of money, and so on. I think what emerges from the American cases,
and I think the Committee will be aware that a predecessor of
mine Sir William McKay gave evidence to the last Joint Committee
at that time on the Corruption Bill, is that the American Supreme
Court came to the conclusion that it was possible to deal in evidence
with matters of corruption affecting members of Congress (of course,
I think it is taken for granted that the law must apply to Members)
without necessarily going into the proceedings. It was not necessary,
in the words of Chief Justice Burger, to go into the completion
of the bargain in Congress, and so he summed up the issue by saying,
and I think this is the reference that has been made here to the
act of corruption: "The guilty act is the acceptance of the
bribe, that is complete, without performance of a legislative
act"—what I have just defined as `proceedings'—"which
the bribe is intended to procure or influence." Those are
the two concepts as I understand them to be in your question.
Q437 Chairman: Any addition from
their Lordships' end?
Mr Pownall: As you well know,
the principles of parliamentary privilege apply to both Houses
but if I could just make the general comment that at least in
recent years issues relating to those principles have arisen far
less frequently in the House of Lords, so on the whole I would
simply endorse the remarks of my colleague from the House of Commons.
We have discussed the evidence together that we were going to
give. I would perhaps add one point which is that, speaking for
the House of Lords, the Code of Conduct, which is adopted by resolution
of the House, is therefore a proceeding.
Q438 Chairman: It is not a proceeding?
Mr Pownall: It is a proceeding.
Dr Jack: And that applies also
in the Commons of course. The Code of Conduct follows a resolution
of the House.
Q439 Lord Lyell of Markyate: Just
very quickly, Lord Chairman, a Member of either House can say
what they like, subject to other rules of the House, in the House
and the words cannot be used against them in court?
Dr Jack: That is absolutely correct,
my Lord.
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