INTERNATIONAL PROSPECTIVE
UNITED
KINGDOM:
CONCEPT
OF STANDARDS OF CONDUCT IN PUBLIC LIFE AND PARLIAMENTARY PRIVILEGES IN UK:
Bribery and corruption are extremely serious offences, which strike at
the heart of public confidence in administrative and judicial affairs. This
factor alone will weigh heavily when considering the public interest in
prosecuting and a prosecution will be expected unless exceptional factors
apply.
Halbury’s laws of England[1] states the law as under:
“Members of Parliament-Except in relation to anything
that is said in debate, a Member of the House of Lords or of the House of
Commons, is subject to the ordinary course of criminal justice; the privilege
of Parliament does not apply to criminal matters.”
Bribery of Members of Parliament according to May’s
Parliamentary Practice is treated as a breach of privilege and contempt of
Parliament[2]. According to most of the writers on English
Law, bribery of Members of Parliament though not a statutory offence at the
Common law[3].
In addition to common law offences corruption offences are found in at
least 12 statutes: The main statutes are the Public Bodies Corrupt Practices
Act 1889 and the Prevention of Corruption Act 1906 as supplemented by the
Prevention of Corruption Act 1916 and the Anti-Terrorism, Crime and Security
Act 2001 (which extends jurisdiction to overseas corruption). Other relevant
statues are the Sale of Offices Act 1551; Sale of Offices Act 1809, Honours
(Prevention of Abuses) Act 1925; Licensing Act 1964; Criminal Law Act 1967;
Local Government Act 1972; Customs and Excise Management Act 1979; Representation
of the People Act 1983;
The main statutes dealing with corruption are as follows:
1.
THE PUBLIC BODIES CORRUPT PRACTICES ACT 1889:
Section 1(1) of the 1889 Act makes it an offence for any person alone,
or in conjunction with others, to corruptly solicit or receive, or agree to receive, for him/herself, or for
any other person, any gift, loan, fee, reward, or advantage whatever as an
inducement to, or reward for, or otherwise on account of any member, officer,
or servant of a public body, doing or forbearing to do anything in respect of
any matter or transaction whatsoever, actual or proposed, in which the public
body is concerned.
Section 1(2) of the 1889 Act[4] creates a similar offence
to that of section 1(1) above, in respect of anyone who corruptly gives promises or offers any gift,
etc.
The definition of a public body is contained in section 7 of the 1889
Act. This definition was amended and extended by section 4(2) of the Prevention
of Corruption Act 1916 to apply to local and public authorities of all
descriptions. However, this definition does not include a government department
or the Crown[5],
so corruption involving those persons should be charged under the 1906 Act, see
below.
Corruptly in the 1889 Act does not mean dishonestly but means purposely
doing an act which the law forbids as tending to corrupt[6]. Corrupt has not been
defined in law.
2.
THE PREVENTION OF CORRUPTION ACT 1906:
The 1906 Act is very broadly worded; it makes it a crime to bribe any
agent. An agent is anybody employed by or acting for another, whether in the
public or private sector. Section 1 of the 1906 Act also creates offences
relating to other corrupt transactions by and with agents in relation to their
principals activities, including making false statements or knowingly giving
false documents to an agent, intending to mislead their principal.
Agent in the 1906 Act includes Crown Servants, but does not include
councilors in local government, so those cases should be dealt with under the
1889 Act. Corruptly in the 1906 Act does not mean dishonestly but means a
deliberate offering of money or other favors, with the intention to corrupt.
The prosecution does not have to prove that the defendant actually
demonstrated favor as a consequence of having received the gift, as long as he
received the gift as an inducement to show favor. Offences under the 1906 Act
require the consent of the Attorney General
3.
THE PREVENTION OF CORRUPTION ACT 1916
In 1916 the presumption of corruption was introduced. This means if a
person gives a gift to any employee of the Crown, a government department or a
public body, and that person or their principal holds or seeks to obtain a
contract from the Crown, a government department, or a public body, that gift
shall be presumed to be corrupt unless the accused person can prove otherwise.
This represents a reversal of the burden of proof.
The Government has indicated that this law will be repealed when the law
is reformed. The presumption does not apply to anything which is only an
offence due to the provisions on overseas corruption within the Anti-Terrorism,
Crime and Security Act 2001.
4.
ANTI-TERRORISM, CRIME AND SECURITY ACT 2001
Part 12 of the ATCSA came into force on 14 February 2002, thus cases
where all elements of the criminality take place overseas can only be
prosecuted in the UK if a relevant event took place after that date. If all
elements of the alleged criminality took place before that date, a prosecution
can still be considered, provided: (a) that some part of the crime took place
in the UK; OR (b) that the offender was a UK national in the service of the
Crown (see section 31 of the Criminal Justice Act 1948.)
The ATCSA also lifted
restrictions on the sharing of information by the tax and customs authorities
in support of criminal investigations or proceedings. Amendments to the Income
and Corporation Taxes Act 1988, which came into force in July 2002, provide
that payments made outside the UK which would have constituted a criminal
offence if made within the UK will not be deductible for tax purposes.
Part 12 of the Act of 2001, section 108 clarifies that the existing
offences of bribery and corruption apply to the bribery of foreign public
office holders, including foreign MPs, judges, ministers and 'agents' (as
defined by the Prevention of Corruption Act 1906). It amends the Act of 1889[7], the Act of 1906[8] and the Act of 1916[9] to ensure that the
corruption offences in the 1889 and 1906 Acts cover (respectively) the
corruption of foreign public officials and foreign agents in the public or private
sector.
Section 109 of the Act is a free-standing provision which gives the
courts in England, Wales and Northern Ireland extra-territorial jurisdiction
over bribery and corruption offences committed abroad by UK nationals and/or
bodies incorporated under UK law. The relevant offences are (a) the common law
offence of bribery; (b) the offences under section 2 of the Public Bodies
Corrupt Practices Act 1889; and (c) the first two offences under section 1 of
the Prevention of Corruption Act 1906. It thus enables bribery offences, when
committed by UK nationals and bodies incorporated under UK law, to be
prosecuted in the UK, wherever those offences take place. Section 109 applies
not only to companies but also, for example, to limited partnerships. It does
not apply to unincorporated bodies.
A company can also be held criminally liable if it can be shown to have
authorised, directed or actively connived in an act of bribery by any of its
overseas subsidiaries. This is by virtue of the laws of incitement and
conspiracy. This would include, for example, directing a subsidiary to pay a
bribe or providing the necessary funds to a subsidiary, knowing that they were
to be used for a bribe.
CONTRIBUTION
OF NOLAN COMMITTEE, 1995
Lord Nolan’s recommendations were discussed in Hansard and most of
them were accepted by the Government. The recommendations, inter alia, suggested appointment of Parliamentary Commissioner for
Standards; establishment of a new Select Committee on Standard’s and
Privileges; introduction of a Code of Conduct; and a review of wording of the
1947 Resolutions. The Second Report of the Committee on Standards in Public
Life said: “The main source of public anxiety, as indentified by Lord Nolan, is
the notion that influence, whether real or imagined, can be bought and sold
through Members. This suggested that any
remedial action, rather than seeking to draw a line of legitimacy between
different types of outside bodies with which members should or should not be
allowed to have paid relationships, ought to concentrate on defining as closely
as possible as those actions by members which, because they give rise to
suggestion about the exercise – or attempted exercise – of proper influence,
need to be prohibited”
Parliament Select Committee Resolution of 1858
The Select Committee observed that “In 1858, the House resolved that
it is contrary to the usage and derogatory to the dignity of this House any of
its Members should bring forward, promote or advocate in this House any
proceeding or measure in which he may have acted or being concerned for or
consideration of any pecuniary fees or reward, a prohibition originally
directed particularly at Members who were practicing barristers. Our report is
based on three- pronged approach:
-
prohibition on paid advocacy in
Parliament;
-
strict regulation governing paid
advance; and
-
transparency in all payments related to
parliament.
It will be one of the key functions of the Parliamentary
Commissioners for the Standards and of the new Select Committee on Standards and
Privileges to provide detail guidelines as cases of doubt arise.
RESOLUTION
OF 1947 ON BASIC PRINCIPLES OF MP’S CONDUCT:
The Committee examined the Resolution of 1947, as it existed then.
It reads as follows: “that it is inconsistent with the dignity of the House,
with the duty of the Member of the House to enter into any contractual
agreement with an outside body, controlling or limiting Members complete
independence and freedom of action of Parliament or stipulating that he shall
act in any way as the representative of such outside body in regard to any
matter to be translated in Parliament; the duty of the Member being to his
constituency and to the country as a whole, rather than any particular action
thereof”.
The resolution represented a concise statement of basic principle
but it did not indicate the specific kinds of Parliamentary actions which ought
not to be undertaken for the payments, on behalf of outside bodied, whether or
not they form subject of formal arrangement. After deliberation, the Select
Committee recommended that the House be asked to agree to the following
addendum to the 1947 Resolution: “and that in particular no Member of this
House shall, in consideration of any remuneration, fee, payment, reward or
benefit in kind, direct or indirect, which Member of any member of his or her
family has received, is receiving or expects to receive:
i.
advocate or initiate ant cause or matter
on behalf of an outside body or individual, or
ii.
urge any other Member of either House of
Parliament, including Ministers to show, by means of any Speech, Questions,
Motion, introduction of a Bill or Amendment to a Motion or a Bill.”
ROYALE
COMMISSION ON STANDARDS OF CONDUCT IN PUBLIC LIFE:
Lord Simon, as Chairman of the Royal Commission on Standards of
Conduct in Public Life, in his report in July 1976, recommended in para 311
thereof as follows:
Member of Parliament is a great honour and carries with it a special
duty to maintain the highest standards of probity, and this duty has almost
invariably been strictly observed. Never the less in view of our report as a
whole, and especially in the light of the point set out in foregoing paragraph,
we recommend that Parliament should consider bringing corruption, bribery and
attempted bribery of a Member of Parliament acting in Parliamentary capacity
within the ambit of criminal law. Lord Nolan also recommended that there is
need to clarify the legal position whether statutory offence of bribery and
corruption applies to the Members of Parliament.
U K NEIL HAMILTON CASE:
In 1994, Neil Hamilton, Minister of Corporate Affairs, had to resign
in the wake of a news paper report, published in The Guardian that he and another Member of Parliament (Mr Smith)
accepted payments for tabling parliamentary questions. The cash for questions
became a matter of wide public debate in John’s Major tenures as Prime
Minister.
While Smith admitted the allegations, Neil Hamilton and a lobbyist,
Ian Greer filled a case for libel against The
Guardian. The defence of the
newspapers was that they would be prevented from justifying their allegations
because of Article IX of the Bill of Rights which guarantees freedom of speech
and debates or proceedings in Parliament. The Court stayed the proceedings
acting on the past precedents. In a mean time, a Bill for procedural amendments
to the law of deformation was pending. It was suggested, it might be used to
waiver the permit of Article IX and as amendment was made allowing such a
waiver. However Neil Hamilton withdrew his suit and faced an investigation by
the Parliamentary Commissioners for Standards.
CORRUPTION BILL (2002–03)
PROSECUTING MP’S AND PEERS FOR CORRUPTION:
The draft Bill
intends that Members of Parliament and peers should be subject to the same
corruption law as everyone else. We support this objective. No witness argued
that MPs and peers should be immune from the corruption laws. The Standards and
Privileges Committee of the House of Commons, the Constitution Committee of the
House of Lords and the (Wicks) Committee on Standards in Public life support
the proposal[10].
Corruption in Parliament has not wholly escaped punishment in the past. Indeed
Members have been punished by expulsion for accepting bribes since at least
1667[11]. The
leading authority on parliamentary procedure, Erskine May, says: “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 the House or to a committee is a
contempt. Any person who is found to have offered such a corrupt consideration
is also in contempt[12]”.
We understand
that the exclusion of MPs from the statutory offences of corruption is a
result of historical accident rather than deliberate policy. This is because
the statutory offences have been interpreted to mean that neither House is a
public body for the purposes of the Public Bodies Corrupt Practices Act 1889
nor a Member of Parliament is not an agent for the purposes of the Prevention
of Corruption Act 1906.
In 1992 one
Member of Parliament was prosecuted for the common law offence of
bribery. The judge ruled that MPs were subject to the common law offence[13]. In
that case it was alleged that the MP accepted bribes from a company in his
constituency “to show such favour as might be within his power as a member of
Parliament” to the company and its directors in relation to their business and
contracts with British Rail. The case never came to a full trial because in a
separate trial of the company executives the judge ruled that there was no case
to answer and the Crown later offered no evidence against the MP. 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[14].
As the Joint
Committee on Parliamentary Privileges noted in 1999, “there are very few
instances of corruption involving Members of Parliament”[15]. 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[16].
We have been told there have been very few cases in other comparable
jurisdictions[17].
The draft Bill does not explicitly mention MPs and peers but its intention and
effect are clearly to include them within the new corruption offences. This is
the case irrespective of whether Clause 12 is in the Bill.
The purpose of
Clause 12 is to remove any evidential difficulty in prosecuting MPs and peers.
We understand that in many situations MPs and peers could be prosecuted for
corruption without any evidence of proceedings in Parliament being adduced in
court. Nonetheless there may be circumstances in which a conviction could not
be obtained without such evidence. The 1999 Joint Committee on Parliamentary
Privilege expected that there would be few prosecutions of Members for
corruption and that in only a small proportion of such cases would it be
necessary to question proceedings in Parliament[18].
The Attorney
General and Director of Public Prosecutions, respectively, told us: “I think
there would be cases where without Clause 12 it would not be possible to bring
a prosecution because evidence of a key ingredient of the offence would not
otherwise be available[19]”.
On the issue
whether Clause 12 is necessary, we refer below to Australian and American
cases. The Clerk of the House of Commons told us: “It can .... be argued that
the fundamental requirement for the successful prosecution of the proposed new
criminal offence of corruption will be clear evidence of the existence of a
corrupt bargain and that Clause 12 will not materially assist the prosecution
in meeting that requirement…..but I accept that some hypothetical cases of
corruption by Members of Parliament would be, at least, extremely difficult to
prosecute as criminal offences without encroaching on the Bill of Rights[20]”.
There is
experience of legislators being prosecuted in other countries without impinging
on freedom of speech in Parliament. We were told that in Australia, evidence of
parliamentary proceedings could be cited in court as long as the participants
in those proceedings were not exposed to criminal liability[21]. In
several instances Members have been prosecuted for corruption-type offences
without reference to parliamentary proceedings and without it being thought
that the prosecution was hampered thereby[22]. In the
United States of America, convictions of legislators for corruption have been
obtained by concentrating on the improper agreement to do something rather than
on the act which was done as part of proceedings in
Congress[23].In both
countries the development in the law has resulted from the decisions of courts
in actual cases; in Australia this has led to Parliament enacting a statutory
definition of parliamentary proceedings.
Bribery and attempted bribery (i.e. where there is an offer to bribe,
even if the offer is not taken up) are common law offences punishable by
imprisonment or a fine at large, or both.
The formulation of the offence is broad. The scope is best summarised in
the case of R v. Whitaker[24]
which states that the common
law offence of bribery is committed when a bribe is given or offered to induce
a public official to fail to act in accordance with his duty.
In the case of R v. Gurney[25]
the mental element was held
to include an intention to produce any effect at all on the decision of a
public officer.
The category of persons who may be bribed is extensive, including a
person who is tasked with carrying out a public duty, for example, a jury
member, a coroner and a member of the armed forces. The offence of
bribery is also committed by the person who receives the bribe. Receipt of the
bribe can also be charged as the common-law offence of misfeasance in public
office.
Case law suggests that entertainment and treats when of small value are
not prohibited because they cannot be regarded as having been conferred in
order to influence a person, or incline him to act contrary to the known rules
of honesty and integrity[26].
In March 2003 the Government, in an attempt to consolidate and clarify
the law on bribery, published a draft Corruption Bill for pre-legislative
scrutiny, based on a scheme put forward by the Law Commission. The Bill was
subject to severe criticism and has not been introduced to Parliament. The Law
Commission has been tasked to produce a new draft which will be published in
due course.
[1]
Vol. II (1) para 37 at page 40.
[2]
21St.Edn. Page 128.
[3]
See for relevant discussion in paragraphs 9-11 in the judgment.
[10] Ev 172 DCB 35; Ev 158 DCB 24; Ev 157 DCB
23 para 8.
[11] For a recent account of the
history see Oliver & Drewry in Conduct Unbecoming Ch 6 Parliament
and the Law relating to Parliamentary Standards.
[12] Erskine May, 22nd edn., Butterworths, 1997, p. 112
[13] R V Greenway. See
Public Law April 1998.
[14] Q233 (Sir William McKay).
[15] Ibid Para 140.
[16] Q 547 (Lord Gold Smith).
[17] Q 260 (Sir William McKay).
[18] Ibid para 168.
[19] Q 562 (Lord Gold Smith).
[20] Ev 134 DCB 5 para 10.
[21] Q239 (Sir William McKay).
[22] Ev 132 lines 49 and 50 DCB 2 (Harry
Evans).
[23] Q248 (Sir William McKay).
