PRIVILEGE (HONOURABLE MEMBERS AND THE LAW) (Hansard, 20 October 1976)

§ The Prime Minister (Mr. James Callaghan)
I am advised that the legal position is as follows. Any action of a Member which is not a "proceeding in Parliament" is subject to the ordinary law of the land. Like any other citizen, a Member may be criminally liable for corrupt activities which are not proceedings in Parliament.
A Member who accepts a bribe in return for some action which is a proceeding in Parliament cannot be the subject of crimina006C proceedings. That is 1447 so for two reasons. The first is the fundamental protection of the Bill of Rights which declares that the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. The second is that Members acting in their capacity as such are not within the ambit of the statutory provisions which make corrupt practices a criminal offence. It follows that only Parliament itself can punish a member for a corrupt action which is a proceeding in Parliament, as Parliament has the power to treat such action as a contempt and can deal with such a Member in a variety of ways, including expulsion and even imprisonment for the remainder of the Session.
The statement made yesterday by my right hon. and learned Friend the Attorney-General dealt with and only with the matters within his responsibility, that is, possible criminal proceedings.
But I recognise that the House is concerned about the general issues raised by this case. Whether the legal position which I have described should be changed is, of course, a matter for the House. The Government are studying the recommendation of the Royal Commission on Standards of Conduct in Public Life of July 1976 that: Parliament should consider bringing corruption, bribery and attempted bribery of a Member of Parliament acting in his Parliamentary capacity within the ambit of the criminal law. As the Royal Commission recognised, the issue is by no means simple. It would be a major constitutional innovation to make the activities of Members of Parliament acting as such subject to judicial law. Far more than the question of bribery and corruption is involved, and even in that limited sphere the issue of principle and the problems of definition would need careful consideration. Nevertheless, an important issue of principle has been raised which the Government wish to consider and on which they will advise the House in due course. The Lord President will report to the House how he thinks we can best make progress in considering the matter.

§ Mr. Steel
I hope that the Prime Minister will convey to the Leader of the House our best wishes for a speedy recovery.
1448 Is not the difficulty here that it is now three days since the Observer alleged that three of our colleagues had been guilty of conduct which, had they been councillors, local authority officials or civil servants, would have rendered them liable to prosecution on charges of corruption? That assertion is either correct or incorrect, and nothing that the Attorney-General said yesterday in his Written Answer led one to believe that it was anything other than correct. [HON. MEMBERS: "No."] The right hon. And learned Gentleman used a phrase in his reply—and this demonstrates one of the problems of a Minister giving a Written Answer to the House and then going on television and answering questions, a course of which the House does not approve—concerning persons "within the jurisdiction". Unless that phrase is clarified it must be assumed to mean that as far as he is concerned, within his limited powers, which the Prime Minister described, there is no ground for further action.
If the assertion is correct the Government have fairly quickly to decide which initiative to take, either to recommend to the House that we alter the laws as recommended by the Royal Commission, or—and, preferably, in my view—that the House should take steps to investigate these allegations and clear them up one way or the other.

§ The Prime Minister
I am obliged to the hon. Member for his comments about my right hon. Friend the Leader of the House.
The answer by my right hon. and learned Friend the Attorney-General yesterday dealt with possible criminal offences, not with parliamentary misconduct. On the question of jurisdiction, I understand that the reference to "within the jurisdiction" was a reference to the territorial jurisdiction of our courts. In other words, it covered people in this country, and not people elsewhere. As I understand it, it does not confer any immunity from criminal proceedings if new evidence were to come to light, and the question of further action would be considered.
On the important point that the hon. Gentleman made, that by inference it must be assumed that the Attorney-General's answer meant that had these Members not been Members of Parliament they 1449 would have been liable to prosecution, allow me to read very carefully what I have here. The Attorney-General's answer must not be taken as meaning that if the law had been different Members of Parliament would have been prosecuted. The Attorney-General did not express and has not expressed an opinion either way on this matter.
We must not rush into conclusions on this. These are very important issues and certainly no vindictiveness against any individual Member should be allowed to influence our opinion. Alas, I have had only a couple of hours to go into this matter and I will not pretend that I am wholly informed about it. But I can see many thorny problems in the way of references of individual cases to the Committee of Privileges. Although I would not wholly rule that out, I suggest that one of the issues we shall have to consider is whether in cases which would not of themselves involve criminal proceedings it would be right to pursue one individual who has been named—I am not responsible for the Observer, and I understand that legal action is being taken in that case—or whether it would he better, and I am not pronouncing but asking questions, for the House to concern itself with this rather obscure recommendation by the Salmon Commission which does not recommend that hon. Members should be brought within the ambit of the criminal law but recommends that we should consider the whole matter. That seems to me to be right because of the difficulties that would arise out of this constitutional innovation.
Again I ask the House to accept that I do not pronounce on the matter, but it seems to me that in view of the obscurity of the position it may be as well to focus on the practice for the future rather than to re-run the past, about which so much has been said and on which on present evidence, as I understand it, no criminal proceedings would be taken.

§ Mrs. Thatcher
We are very sorry that the Lord President is ill. We know that he has a particularly painful illness and we hope that he will soon recover.
May I join the Prime Minister in saying that I believe that this matter raises very 1450 big and worrying issues which go beyond the immediate legal issues? At the end of his statement he said that the Government would consider these issues and would give their advice to the House. Could it not go wider than the Government? I believe that when such big issues of freedom of speech in this House are involved all parties in the House are affected, and I would be grateful if we, too, could be taken into the consultations.
I shall refrain from questioning the Prime Minister on the details of the statement because I notice that it is a very carefully drafted legal statement, and it would be unfair to cross-examine the right hon. Gentleman on the legalities.

§ The Prime Minister
In the time available to me, I have looked up a very good speech which I made in 1947 on the W. J. Brown case—the classic case in these matters. I do not subtract from anything I said then. I started by saying that although I was neither a constitutional historian nor a lawyer, I proposed, as a layman, to plunge in. I do not mind anyone reading that speech. It is a good thing to prepare oneself before coming to the House. Someone else might have read that speech before I got here.
The only reason I said that the Government would offer advice to the House is that the Salmon Commission has reported to the Government and it seemed appropriate, in the first place, that we should make our view known. But that is only a first step and I would envisage that the Government will then either make recommendations on the substantive nature of the report, which the House will have to consider and decide whether to accept, or recommend procedure for further consideration. The Lord President has not yet decided on these matters.
It is appropriate that the whole House should be involved in the consideration of a matter which springs from our protection under the Bill of Rights 1688. Not even this Government who, as the Opposition know, are wholly dictatorial and are leading us down the path of totalitarianism, intend to take this decision on their own. I can reassure the right hon. Lady that all hon. Members will be involved in this consideration.

§ Mr. Skinner
Does my right hon. Friend accept that while it might be important and necessary to preserve the fundamental freedom of speech of hon. Members, they should not be given the licence and freedom to line their pockets at the expense of the taxpayer and the public? Does he not also appreciate that when he talks about looking at the matter in general and not at specific matters in relation to the Poulson backhanders, millions of people outside this House will regard that statement as nothing short of a cover-up by Members of Parliament to safeguard other Members of Parliament?
Can the Prime Minister guarantee that the Committee of Privileges will look at this matter not merely in general terms but with a view to examining all the matters brought before the DPP relating to the Poulson affair so that we do not make only plans for the future but also decisions on what has already happened?

§ The Prime Minister
I accept the inference of my hon. Friend's question that the purpose of the freedom of hon. Members from arrest or proceedings in respect of their speeches was intended as a protection for the public interest and not against it. It was not intended to protect anyone who misuses his position.
I am sure that my hon. Friend has studied this matter and he will recognise that there is a difficult line to be drawn here. If he has studied the 1947 debate—the classic debate on this matter since the war—on W. J. Brown and his relationship with his trade union, which some hon. Members will remember, he will see that very difficult issues arise here and it would be unfortunate if some of his phrases such as "a cover-up" were accepted. That is too simplistic a view of the situation.

§ Mr. Skinner
It is my view.

§ The Prime Minister
I know that my hon. Friend holds his views very strongly, but some of us are also allowed to have our views on the matter.
I have made the general position clear and I do not think that hon. Members should misuse their position. There is a different contractual relationship between, for example, an hon. Member and a trade union and the position in 1452 some other circumstances, but it is not a clear and simple line.
I should not like to answer today my hon. Friend's question about a reference to the Committee of Privileges.

§ Mr. Hooson
Does the right hon. Gentleman not agree that it would be very bad for this House if the impression went abroad that we were concerned in any kind of cover-up? It is important to discuss other matters in the long term, but there is the shorter-term issue of the three people named by the Observer. Is it not right that the Government should take the initiative and have an inquiry into this matter? If these people are on the right side of the borderline, so be it. However, if they are not, should not the House take some action?

§ The Prime Minister
This is a matter to be decided by the House, although it is usual for the Lord President to put down such a reference. I am not able to give an answer to that question today. We must wait and see what further consideration is given to it.

§ Mr. John Mendelson
Is my right hon. Friend aware that there will be a welcome for his statement, as far as it went in clearing up the point which has done the most damage in the last three days when radio and television stations repeated false statements giving the impression that hon. Members cannot be charged with corruption, without the qualification that this is related to statements made in Parliament? Does my right hon. Friend realise that this statement has pre-occupied the public for three full days and that he must face up to that fact? I do not believe he did so sufficiently in his statement.
In the light of that, is it not essential that, as any inquiry which the House might undertake at the suggestion of the Lord President would take time, we should have a quick debate in which the Attorney-General would be able to speak as, through no fault of his own, he has not been able to speak so far, and in which a preliminary expression of the opinion of all sides of the House could be given to clear up this fundamental matter which has been occupying the minds of the public?

§ The Prime Minister
There can be no doubt about the fundamental matter. 1453 I made clear, and my hon. Friend has just repeated, that the Attorney-General's answer dealt with criminal offences and not alleged parliamentary misconduct. That was the purpose and basis of the answer.
I made clear either in my statement or in reply to a supplementary question that criminal offences committed outside the House can be and would have been the subject of proceedings. The Attorney-General's anwer yesterday made clear that, on the basis of the information so far available to him, there had been no such offences upon which further action should be taken. I hope that there will be no doubt about that.
The question on which attention is now focusing is whether we should look back over alleged parliamentary misconduct or look forward to the procedure to use in future. I am in no doubt that we should look at our procedure, but I am unable to express a view whether we should look back. Other hon. Members may express such a view. It is a matter for the whole House.

Several hon. Members
rose—

§ Mr. Speaker
Order. I shall allow two more questions on this subject.

§ Sir D. Walker-Smith
May I first respectfully express my agreement with the legal position adumbrated by the Prime Minister and my satisfaction that the Government are to review this difficult, complex and important matter?
While it is clearly of paramount importance that any constitutional innovation must be jealously scrutinised by this House to see that there is no derogation of Parliament's exercise of its traditional functions, it is also important that there should not be or seem to be a void in which reprehensible conduct may be covered neither by the sanctions of criminal law nor by the sanctions of this House.
Will the Government in their review of this situation take into account that the Committee of Privileges is an imperfect forum for the ascertainment of difficult issues of disputed fact and that therefore, if the jurisdiction of Parliament, as exercised by the Committee of Privileges, is not to be supplemented from 1454 outside, it must be improved from within?

§ The Prime Minister
I agree with the right hon. and learned Gentleman that it is important to avoid a situation in which reprehensible conduct could not be covered by the sanctions of this House. My understanding is that it can be so covered.
The criticism made by the Salmon Commission was directed to a different matter—namely, how thorough such an investigation was and, indeed, whether the House should exercise it or hand it over.
Regarding the Committee of Privileges, again I express a preliminary view. I am inclined to agree with the right hon. and learned Gentleman that the Committee of Privileges would not be an appropriate body to consider some of these matters. There are one or two reasons for that, but I do not think that I need to be pressed to give them this afternoon. It may be that a new Committee of the House should be set up to consider this issue.

§ Mr. Abse
In view of the suggestion by my hon. Friend the Member for Bolsover (Mr. Skinner) of a cover up and consequently an opinion being formed outside of possible complicity on the part of the Government or Ministers, is it not important to stress that any immunity is confined to Back Benchers and that, as the Salmon Commission emphasised, Ministers of the Crown can be prosecuted and proceeded against for a common law offence on indictment for misbehaviour in public places—[Interruption]—in public office? It is important that the general community outside fully understands that there is no question of Ministers of the Crown having any immunity whatsoever from the criminal law of this country.

§ The Prime Minister
I think that it is accurate to say—I speak with deference in my hon. Friend's presence—that Ministers of the Crown enjoy the same immunity as other hon. Members regarding proceedings in Parliament but that they are not exempt from the law in relation to their ministerial office and their performance of it. That being the case, the great bulk of Ministers' activities, thank heavens, not being concerned 1455 with appearing only at the Dispatch Box, are therefore subject to the law of the land.

§ Mr. English
On a point of order, Mr. Speaker. It seems to me that either the Observer or Members of this House have committed a breach of privilege. I realise that that should be raised after ministerial statements. But may I have your advice as to when it should be raised?

§ Mr. Speaker
It is too late to raise the question of the Observer and privilege. That should have been done on Monday.