Letter to Met Police re: Owen Paterson
Update #5, 03/02/2022: Email from Met Police to say that the assessment continues, that no timescale can be given for conclusion, and no updates will be available until a conclusion is reached. There is no indication of whether th apparent delay is linked to the pending release of emails as order by the House of Commons.
Update #4, 11/03/2022: A further short update from the Met Police to say that
the assessment is still actively being progressed. A decision and outcome will be forthcoming once that process is completed.
Update #3, 04/01/2022: A short interim update from Met Police Special Enquiries Team, who
confirm we are still assessing your allegation at the moment. We are presently reviewing the information contained within the report of the Parliamentary Commissioner for Standards, and due to the complexities of some of the legislation, liaising with our Legal services.
Update #2, 02/11/2021: Receipt by Met Police acknowledged and request for assessment now with Special Enquiries Team
Update #1, 01/11/2021: No blue tick support, so sent in my own name, because someone has to. A few small typos and grammar bits sorted, but basically sent as drafted.
In keeping with my practice of (fairly) transparently seeking justice in cases where no-one else seems to quite get round to it, here is my letter to the Met Police seeking an assessment of whether Owen Paterson should be considered for prosecution under the Bribery Act 2010. This is the third such request of fairly recent times — the first referenced in this draft, and the second kept quiet about for personal safety reasons.
Please note that I am not here accusing Owen Paterson of any offence. I am merely asking that an assessment be made of whether the matters set out by the Commons Committee for Standards should be taken up beyond the House, and have suggested an offence that might be considered.
As ever with these cases, this is a draft in case anyone with more legal training than I have (and I have none) wants to comb through and suggest edits, or in case anyone with more ‘clout’ than I have wishes to submit this or a similar request for assessment. Other people may already have done so. I have no way of knowing, and I have therefore done what I sometimes feel compelled to do.
Commissioner Cressida Dick
Metropolitan Police Service
New Scotland Yard
Dear Commissioner Dick
Mr Owen Paterson MP
I write to seek a formal assessment of whether Mr Owen Paterson 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 October 26th 2021, the House of Commons Committee on Standards made public its report on the behaviour of Mr Paterson in relation to the 2015 Code of Conduct for Members of Parliament, and further to the inquiry of the Parliament Commissioner for Standardsinto Mr Paterson’s alleged paid advocacy for two firms.
The report is available online at https://committees.parliament.uk/publications/7644/documents/79907/default/
The report is long and detailed, not least because it covers not just the conduct of Mr Paterson that led to inquiry by the Parliamentary Commissioner for Standards, but also Mr Paterson’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 Paterson breached, on some fourteen occasions (para. 8 of the Committee report) paragraph 11 of the 2015 Code of Conduct for Members of Parliament, which requires that:
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 Paterson 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 May 27th 2020, I submitted a request for assessment as to whether Mr Conor Burns MP had committed an offence under Section 40 the Administration of Justice Act 1970. Your response of September 1st 2020, after having conducted such an assessment, was to the effect that no further action could be taken because the offence is a summary-only one, and as such ‘timed out’ by virtue of the time limits set in the Magistrates’ Act 1980.
Nevertheless, there appeared to be a prima facie acceptance that it was legitimate for a member of the public to seek an assessment of whether an offence had been committed in relation to a report published by the Commons Committee on Standards, irrespective of whether the Parliamentary Commissioner for Standards had submitted the matter to yourselves for assessment (this had not been done in the case of Mr Burns, and I do not knopw if it has been done in this case). I hope that the same principle will be applied in the case concerning Mr Paterson, in which I submit that an assessment is needed of whether an ‘each way’ offence has been committed.
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 own understand that parliamentary privilege should and would 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 Paterson has not disputed (para. 18 of the Committee report) that he has been paid by two companies. In other words, he has received “financial advantage”.
Further, Mr Paterson has engaged in advocacy of a type which the Committee regards as “paid advocacy” and therefore in breach of paragraph 11 of the Code of Conduct. It is reasonable therefore to surmise that he has received payment 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.
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 Paterson in approaching Minister in the way he did, and as set out on the Committee report, are obviously of a public nature, and that therefore this requirement is met.
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 Paterson’s relevant activities can be said to meet all of these conditions.
In relation to Condition A, relevant activity conducted outwith 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 Paterson was fully aware of the relevant sections of the Code, and chose to deploy a “special wrong” exemption argument )para. 22 of the Committee report) as a way of circumventing the requirements of the Code
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 is
(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 Paterson has breached the Code of Conduct would lad any such reasonable person to believe that the relevant functions were performed improperly by Mr Paterson.
I look forward to hearing from you in due course.