Update #1, 08/03/2013: Met Police emailed seeking acknowledgment of receipt of letter, which was finally sent on February 10th 2023.
In keeping with normal practice, I offer my draft letter to Met Police for comment before I send, but also time to allow a higher profile person to take up the content and send it in their name.
If I do not get any interest by the end of the weekend, I will submit the letter myself. The last letter (re: Owen Paterson) got a reply around 11 months later, so don’t hold your breath.
Here’s the draft, because somebody had to.
January 12th 2023
Dear Sir Mark
RE: Mr Andrew Bridgen MP
I write to seek a formal assessment of whether Mr Andrew Bridgen MP should be investigated for a possible offence under Section 2 of the Bribery Act 2010, The Act is online at https://www.legislation.gov.uk/ukpga/2010/23/data.pdf
On November 1st 2022, the House of Commons Committee on Standards made public its report on the behaviour of Mr Bridgen in relation to the Code of Conduct for Members of Parliament, and further to the inquiry of the Parliament Commissioner for Standards into Mr Bridgen’s alleged paid advocacy for the firm Mere Plantations, and for irregularities in respect of Mr Bridgen’s registration of interests.
The report is available online at https://committees.parliament.uk/publications/31469/documents/176530/default/
The report is long and detailed, not least because it covers not just the conduct of Mr Bridgen that led to inquiry by the Parliamentary Commissioner for Standards, but also Mr Bridgen’s conduct during the inquiry period. My focus here is solely on the former conduct, and the question of whether this conduct constituted an offence under section 2 of the Bribery Act 2010.
In essence, the report finds that Mr Bridgen breached paragraphs 14 (registration of interests) and paragraph 12 (paid advocacy) of the Code of Conduct for Members of Parliament. Only the latter paragraph is of relevance to my request for formal assessment, and reads:
No Member shall act as a paid advocate in any proceeding of the House.
What I now seek assessment of whether the conduct of Mr Bridgen, in relation to the matters covered by the Commons Committee, constitutes a criminal offence. Before moving on the substance of how that conduct might constitute an offence, I make two related points about the legitimacy of my request for assessment.
First, on November 27th 2021, I submitted a request for assessment as to whether Mr Owen Paterson, then an MP had committed an offence under the same section of the Bribery Act 2022 as I know bring to your attention in the case of Mr Bridgen MP. I received the final response to this request in a letter from the Special Enquiry Team dated October 11th 2022.
This letter informed me that the allegation I had made in respect of Mr Paterson’s conduct would not lead to a criminal investigation, but did not set out the reasons why that decision had been reached.
It therefore seems reasonable to proceed with this further request for assessment, on the basis that the facts in this case are different — notwithstanding the fact that they again relate to a Parliamentary Standards Committee report finding that “paid advocacy” has been undertaken by an MP — and that the assessment may therefore lead to a different conclusion, not least because the incidents of paid advocacy do seem more egregious and persistent in this case.
In any event, this letter seeking assessment is made in good faith, and in line with the fact that the letter to me dated October 11th 2022 did thank me for bringing the previous matter to attention, suggesting that the case I had set out did have some merit.
Second, it may be, should the case progress towards prosecution, that an attempt will be made to invoke the concept of parliamentary privilege as a defence against such prosecution.
My lay contention, rooted in Erskine May’s reference to resolutions of the House in 1695[i], is 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”, is that parliamentary privilege should not extend to a matter of possible criminality, even in a case which relates to the House’s own Code of Conduct, and thus the privilege it enjoys to conduct its own affairs; to make such an assumption of privilege would, in my submission, be counter to the intent of the Bribery Act 2010, which concerns itself primarily with the prosecution of improper conduct in public office.
That aside, I recognize that such matters would be a matter for the courts and my main contention here is that the prospect of such a defence against prosecution should not deter from an assessment of possible grounds for criminal prosecution at this earlier stage.
Case for proposed assessment
My substantive case as to why an offence may have been committed, and that a formal assessment of whether prosecution may be warranted is as follows.
Section 2, paras 1 to 3 are as follows:
(1) A person (“R”) is guilty of an offence if any of the following cases applies.
(2) Case 3 is where R requests, agrees to receive or accepts a financial or other advantage intending that, in consequence, a relevant function or activity should be performed improperly (whether by R or another person).
(3) Case 4 is where — (a) R requests, agrees to receive or accepts a financial or other advantage, and (b) the request, agreement or acceptance itself constitutes the improper performance by R of a relevant function or activity.
Mr Bridgen has engaged in lobbying activity on behalf of Mere Plantations (meeting and emails), detailed of which are set out at paragraphs 76 to 78 of the Committee on Standards report , which the Committee regards as “paid advocacy” and therefore in breach of paragraph 12 of the Code of Conduct. As I set out in more details below, I contend that such paid advocacy can be interpreted as “a relevant function or activity” being “performed improperly” by Mr Bridgen himself (“R” in the wording of the Act).
In terms of “financial or other advantage”, the matter is somewhat complicated by the fact that Mr Bridgen did not take direct payments in line with the contract he signed with Mere Plantations. In light of this, the Committee on Standards limits itself to consideration of the two point at which Mr Bridgen did apparently receive compensation , namely a donation from Mere Plantations to his constituency association, and the provision of a trip to Ghana by Mr Bridgen.
However, section 2 of the Bribery Act is somewhat broader than the Code of Conduct in terms of what might constitutes an ‘offence’; not only is it an offence to “accept” financial or other advantage, but it is also an offence to “agree” to such advantage. Prima facie, the conduct of Mr Bridgen seems to fit with this broader interpretation, in that while he did not in the end receive payment himself, he did sign a contract to the effect that payment for services was agreed. Moreover, at no point did he seek to withdraw from that contract, and this leads the Committee to find (para 74) that Mr Bridgen continued to enjoy a “firm and specific expectation” of payment.
It is reasonable therefore , given the contractual nature of the agreement, to surmise that Mr Bridgen received advantage or, at least, agreed to receive it with the “intention” of performing a relevant function improperly (an offence under Case 3) or that accepting payment is itself improper performance of his relevant function as an MP bound to observe the Code of Conduct (an offence under Case 4). Indeed, it may be that both offences have been committed.
Definitions and conditions for prosecution
In terms of the definitions and conditions set out in the Act, the following might be noted.
First, section 3, para. 2(a) regards as “a relevant function or activity” “any function of a public nature”. I submit that that the actions of Mr Bridgen in approaching Ministers in the way he did, and as set out on the Committee report (paras 77 and 78), are obviously of a public nature, and that therefore this requirement is met.
One possible argument against this requirement being regarded as met is that the lobbying activity per se was not conducted improperly, and that this is more important to the overall case than whether Mr Bridgen fulfilled his overall relevant function of Mr Bridgen as an MP. However, even if this were conceded, it is important to note that the report covers what, under the Code of Conduct, can be regarded as ‘proper’ lobbying i.e. lobbying carried out under the so-called Constituency Exception (para 83 to 88), and the “improper” lobbying carried out by Mr Bridgen on behalf of a legal entity outside of his constituency.
Second, Section 3, para 1 (b) of the Act requires, for it has be deemed that an offence has been committed, that one or more conditions be met. These conditions are set out at sub-paras 3 to 5 and are:
(3) Condition A is that a person performing the function or activity is expected to perform it in good faith.
(4) Condition B is that a person performing the function or activity is expected to perform it impartially.
(5) Condition C is that a person performing the function or activity is in a position of trust by virtue of performing it.
I submit that Mr Bridgen’s relevant activities can be said to meet all of these conditions.
In relation to Condition A, relevant activity conducted in a way not in accordance wityh the Code of Conduct can be considered as not in good faith especially when, as set out within the Committee report, it seems clear that Mr Bridgen was aware of the relevant sections of the Code. This is not least because he accepted that he had received an email from the Registrar “reminding him about the lobbying rules” (para 22) on June 10th 2020.
In relation to Condition B, activity conducted which has now been deemed by the Committee to constitute paid advocacy must, be its nature, be regarded as not being impartial.
In relation to Condition C, relevant activity conducted by a Member of Parliament must be seen as being conducted by a person in a positon of trust precisely because it is being conducted by a Member of Parliament, who enjoys the privileges of the House in return for a general expectation that he is trusted to conduct himself within the rules of the House.
Third, section 4, para. 1 of the Act requires, for it to be deemed that an offence has been committed, that the relevant function or activity:
(a) is performed improperly if it is performed in breach of a relevant expectation, and
(b) is to be treated as being performed improperly if there is a failure to perform the function or activity and that failure is itself a breach of a relevant expectation.
“Relevant expectation” is a matter for the “expectation test” set out at section 5, para 1 of the Act, and is:
For the purposes of sections 3 and 4, the test of what is expected is a test of what a reasonable person in the United Kingdom would expect in relation to the performance of the type of function or activity concerned.
I submit that the very fact that the House of Commons Committee on Standards has determined that Mr Bridgen has breached the Code of Conduct would lead any such reasonable person to believe that the relevant functions were performed improperly by Mr Bridgen.
In summary, I submit on the basis of the initial detail provided above that there is a reasonable case for an assessment of whether Mr Bridgen MP may have committed offences under section 2 of the Bribery Act 2010. I look forward to hearing from you in due course.
[i] This Erskine May reference to the 1695 resolution of the House (along with other resolutions) is itself referenced at Note 42 of the 1997 Minutes of Evidence to the Joint Committee on Parliamentary Privilege, available online at https://publications.parliament.uk/pa/jt199899/jtselect/jtpriv/43/7120201.htm