Mrs Natalie Elphicke, Sir Roger Gale, Adam Holloway, Bob Stewart, Theresa Villiers Contents

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Report

1.This Report arises from an inquiry that the Parliamentary Commissioner for Standards opened on her own initiative following receipt of information from the office of the Lord Chief Justice of England and Wales, that suggested that Mrs Natalie Elphicke MP, Rt Hon Sir Roger Gale MP, Adam Holloway MP, Colonel the Rt Hon Bob Stewart MP and Rt Hon Theresa Villiers MP breached paragraphs 16 and 17 of the Code of Conduct by sending letters to senior judges in relation to the public disclosure of pre-sentencing character references, and that those letters sought improperly to influence a judicial process.

2.The Commissioner has supplied us with a memorandum relating to these matters, which we publish as an appendix to this report.1 All five Members have provided us with further written evidence which we publish as appendices to this report.2 In addition, three of the five Members (Sir Roger Gale, Adam Holloway and Colonel Stewart) opted to give oral evidence; a transcript of that evidence is available on our website.

3.Full details of the Commissioner’s inquiry and her findings are set out in the memorandum. We summarise them briefly before setting out our own analysis and conclusions which take into account the written and oral evidence from the Members concerned.

The Commissioner’s findings

4.Mrs Elphicke, Sir Roger, Mr Holloway, Col Stewart and Ms Villiers (“the Members”) sent a letter on 19 November 2020, using House-provided stationery, to Dame Kathryn Thirwall, Senior Presiding Judge for England and Wales, and Dame Victoria Sharp, President of the Queen’s Bench Division, copied to Mrs Justice Whipple.

5.Mrs Justice Whipple had heard the trial of a former Member, Charlie Elphicke, and was to hear and decide on an application made under section 5.7 of the Criminal Procedure Rules to release the pre-sentencing character references. The Members’ letter of 19 November 2020 “express[ed] concern” that Mrs Justice Whipple was holding a hearing into whether the character references should be released, and argued that a decision to disclose the references would be a “radical change to judicial practice” which “could have the [sic] chilling effect and harm the criminal justice system”.3 The letter also stated that “some of the witnesses are extremely vulnerable” and that the authors of the letter understood that those witnesses had “suffered additional mental harm and distress because of the way this matter is being handled by the Judge”.4 The letter ended by stating:

We believe it is important for you, as senior judges with relevant oversight responsibility, to consider the crucially important matters of principle which are at stake in this case, prior to any disclosure of names of any members of the public or of the references they have provided to the court.

So serious a matter with such significant repercussions also should be considered further and fully by Parliament. We are all Parliamentarians. In order that we may freely express our serious concerns pertaining to vulnerable private individuals, we have decided to place our own references into the public domain.5

6.On the same day, Sir Roger, Mr Holloway, Col Stewart and Ms Villiers published their own character references, and made a statement to the media about their concerns, which included a statement that they had written to senior judges about the matter. Col Stewart also asked a question of the Leader of the House at Business Questions the same day.6

7.The Private Secretary to the Lord Chief Justice of England and Wales replied on 20 November to the letter of 19 November, stating that “It is improper to seek to influence the decision of a judge in a matter of which he or she is seized in this way. [ … ] It is all the more regrettable when representatives of the legislature, writing as such on House of Commons notepaper, seek to influence a judge in a private letter and do so without regard for the separation of powers or the independence of the judiciary”.7

8.The Members replied on 22 November to the Lord Chief Justice, stating:

“You will be aware that trial and sentencing have both concluded in Mr Elphicke’s case. All that remains is a media request submitted for media reasons. [ … ] Nothing in our letter was intended to challenge the judge’s authority.

[ … ] [A]s Parliamentarians, we do feel it is legitimate to set out concerns about the long-term implications of publication of character references submitted to the judge solely to assist sentencing, and containing private and confidential information. This has been confirmed as properly a matter for Parliament and Parliamentarians.

[ … ] We have not asked Dame Sharp (sic) to interfere with Mrs Justice Whipple’s decision, only to ‘consider the crucially important matters of principle which are at stake in this case’”8

9.The Members also wrote to Mrs Justice Whipple on 22 November, stating:

“In raising this with you and your judicial colleagues, we do not in any way challenge your authority to take the decision on publication. We only wish you to be aware of the potential impacts of publication and also the concern that some referees are reluctant to make representations at the forthcoming hearing because this will disclose their identity.

[ … ] [A]s Parliamentarians, we felt duty-bound to highlight the potentially wider-ranging implications of routine publication of references in past of future cases.”9

10.All the letters were also signed by Lord Freud, a Member of the House of Lords, whose conduct falls outside the Commissioner’s remit. The House of Lords Commissioner reported on her investigation into Lord Freud’s conduct on 9 February 2021. She concluded that by being a signatory to the letters of 19 and 22 November, Lord Freud had failed to meet the standards of conduct expected of individual members of the House of Lords. She found therefore that he had breached that House’s Code of Conduct by failing to act on his personal honour. She recommended that he make a personal statement on the matter in the House.10 Lord Freud did so, also on 9 February, saying: “My motive was purely to alert the judiciary to what I considered an important issue of principle. However, I recognise it was not my place to do so and should not have added my name to the letter. I apologise to the House and judiciary.”11

11.Paragraph 16 of the House of Commons Code of Conduct for Members states:

Members are personally responsible and accountable for ensuring that their use of any expenses, allowances, facilities and services provided from the public purse is in accordance with the rules laid down on these matters. Members shall ensure that their use of public resources is always in support of their parliamentary duties. It should not confer any undue personal or financial benefit on themselves or anyone else, or confer undue advantage on a political organisation.12

12.Paragraph 17 of the Code states:

Members shall never undertake any action which would cause significant damage to the reputation and integrity of the House of Commons as a whole, or of its Members generally.13

13.The Commissioner accepted that an “important point of principle” was highlighted in the letter, but noted that “a hearing, in open court, with legal representation and full arguments” was scheduled to consider the “specific issues concerned with the release of the character references”.14 She also noted that the letter of 19 November ended with a “request that senior judges act ahead of the pending court hearing”.15

14.Mrs Justice Whipple had invited written submissions from all the character referees, to be facilitated by Mr Elphicke’s former defence team, now acting as officers to the court. The Commissioner stated that she was “unclear why the Members did not either submit their concerns directly to Mrs Whipple or, alternatively, encourage the affected constituents to make use of the mechanisms provided by the court”.16

15.The Commissioner concluded that, by privately requesting the intervention of two senior judges, and then following the letter with further correspondence, the five Members had attempted to interfere in a judicial process. She concluded that this amounted to a breach of paragraph 17 of the Code.17 Since actions that breach paragraph 17 of the Code cannot be part of a Member’s Parliamentary duties, House-provided stationery should not have been used, and she therefore found that the letters also breached paragraph 16 of the Code.18

16.The Commissioner found that Sir Roger Gale, Adam Holloway and Col Stewart did not breach paragraph 16 of the Code in using House-provided stationery for their pre-sentencing character references for Mr Elphicke. (This finding only relates to those three Members: Ms Villiers used her own stationery and Mrs Elphicke did not provide a reference.)

The Committee’s consideration of the cases

17.We have considered these cases as five individual cases, although with significant overlap. All five Members have submitted written evidence to us. Mrs Elphicke and Ms Villiers accept the Commissioner’s findings, and have apologised for breaching the Code.19 Sir Roger, Mr Holloway and Col Stewart did not accept the Commissioner’s findings in their written evidence to us. They requested to give oral evidence before us, which they did on 13 July 2021.20 Mr Holloway and Col Stewart subsequently accepted in oral evidence to us that they had breached the Code and apologised for doing so.

18.We set out our analysis on features common to the cases of all five Members below, before setting out our overall conclusion. We then set out the outcome for each Member individually.

Analysis

Application of Parliamentary privilege

19.The Commissioner in her memorandum considered the issue of whether the letter of 19 November 2020 was protected by parliamentary privilege by virtue of the fact that the issue had been raised on the floor of the House during Business Questions that day by Col Stewart, and the implications of this. Parliamentary privilege is a complex concept, but in this instance it can be considered as two things: the rights of Members to speak freely in proceedings, and the right of the House to control its own precincts and proceedings. In this case, the action complained of was the sending of letters to the judiciary. Such letters are not proceedings, and privilege does not apply. Moreover, parliamentary privilege does not operate to displace or exclude the House’s internal disciplinary processes, of which the Commissioner’s investigations are part; instead, the House has protected freedom of speech in proceedings in the way in which the Commissioner’s remit is defined. This investigation is within that remit.

20.As the Commissioner observes, given the nature of Parliamentary privilege, it would be surprising if it were to operate in such a way that, by raising an issue on the floor of the House, a Member would be granted either “unlimited power of action” in following up that proceeding by other means or “blanket immunity from a further proceeding of the House”, such as an inquiry conducted by the Commissioner.21

21.We agree with the Commissioner that the conduct of the five Members in sending the letters of 19 and 22 November 2019 is not exempt from investigation under the House’s internal procedures by reason of parliamentary privilege.

The draft letter

22.The Commissioner considered during her investigation an early draft of the letter that was eventually sent, in a revised form, by the Members, and she expressed her “concern” about some of the contents of the draft. The Commissioner stated while she had not considered the question of a breach in relation to the contents of this purely draft letter, she felt that the draft might be likely “to indicate the early intention of at least one of the Members”. She made clear that she “accept[s] and recognise[s] that there are major differences between this version and the eventual letter sent”.22

23.We, like the Commissioner, accept that the early draft referred to in her memorandum was not the form in which the eventual letter was sent. We have not therefore taken the contents of the draft letter into account in considering this case.

Were the letters an attempt at improper influence?

24.In their written evidence, Sir Roger, Mr Holloway and Col Stewart claimed that “no attempt was made to ‘influence the course of a live case’ and neither, in the letter sent on 19 November 2020, was there any criticism, actual or implied, of Mrs Justice Whipple”.23 In oral evidence, Sir Roger repeated this claim that the letter was not an attempt to influence judicial decision-making:

I suppose you could argue that they are judicial proceedings, but I must confess that it did not cross my mind at all that this would be regarded as an interference in a trial. What we were trying to do—it really is all we were trying to do—was to put down a marker to say, “Just before we take the pin out of this grenade, could you please make sure that you understand what may happen if it goes ‘bang’?”24

25.Col Stewart, asked whether he accepted that the Members had sought to influence the judges, responded:

I wouldn’t say—we were trying to alert the judges. Influence? Well, I suppose, in a way, we were, which is where we were wrong. What we were trying to do was to alert the judges—senior judges—that we were concerned about something.25

26.We note that Sir Roger Gale, despite maintaining that there was no attempt to influence the case, seemed to backtrack on this claim in his oral evidence to us. He stated that Mrs Justice Whipple’s eventual judgement in the case had clarified the law and suggested that this was perhaps attributable to the action taken by the Members:

“I am not a lawyer, but it appears to me that a precedent has now been set. There is a point of reference, and hopefully from henceforth anybody finding themselves in a similar situation will know that they can make a plea in mitigation and that their private details, where appropriate, will be redacted. If we have achieved that—I don’t like these circumstances any more than you do; I appreciate you don’t—we have probably done the cause of the House a favour.”26

27.The letter of 19 November 2020 asked the Senior Presiding Judge for England and Wales and the President of the Queen’s Bench Division “to consider the crucially important matters of principle which are at stake in this case, prior to any disclosure of names of any members of the public or of the references they have provided to the court.”27 The Commissioner observed that this is “a request that the two senior judges act ahead of the pending court hearing scheduled for 25 November 2020”.28

28.This is a clear call for the senior judges to take action in the case. We agree with the Commissioner that this makes the position that the letter was solely about a point of principle untenable. The only reasonable interpretation of the letter of 19 November 2020 is that it was seeking intervention by Dame Kathryn and Dame Victoria prior to the hearing on 25 November.

29.The contents of the letter of 19 November also make it impossible to accept the argument that it contains no implied criticism of Mrs Justice Whipple. The fact that the letter was copied to Mrs Justice Whipple rather than addressed to her directly implies that the Members were attempting to exercise an undue influence over her through her superiors rather than informing the hearing.

30.Speaker’s Counsel, in advice to the Commissioner, quoted from the 1999 report of the Joint Committee on Parliamentary Privilege on the relationship between Parliament and the courts:

The proper relationship between Parliament and the courts requires that the courts should be left to get on with their work. No matter how great the pressure at times from interest groups or constituents, Parliament should not permit itself to appear as an alternative forum for canvassing the rights and wrongs of issues being considered by the judicial arm of the state on evidence yet to be presented and tested.29

Speaker’s Counsel further advised the Commissioner that:

[ … ] in the light of the observations of the Joint Committee on Parliamentary Privilege, and of the courts, on the importance of respecting and maintaining the constitutional separation between the courts and Parliament, I would have said that it would be particularly improper for [the Members who sent the letter] to use the authority and status conferred on them as Members of Parliament to influence the outcome of legal proceedings (or, as a minimum, in a way that could appear to be attempting to influence those proceedings).30

31.The Commissioner found that the risk that the letter could be perceived as an attempt to influence the conduct and outcome of the hearing on 25 November 2020 was “particularly acute” because it was sent “to senior judges and not directly to the judge holding the hearing”;31 and that the fact that the letter was copied to Mrs Justice Whipple had the effect of “letting her know that she has been by-passed and the issues have been raised with her senior colleagues”.32

32.The nature of the request in the letter of 19 November 2020, and the recipients of that letter, make clear that this was an attempt to influence judicial decision-making. This is compounded by the fact the letters were sent privately. The Commissioner noted that the letter was “raising privately the very issues that the pending hearing had been convened to hear and consider publicly”,33 and concluded that “by privately requesting the intervention of two senior judges, and then following that letter with further correspondence, the Members attempted to interfere with independent judicial decision making”.34

33.We do not accept the distinction, put forward to us by Sir Roger in oral evidence, between a trial and a hearing: both are judicial proceedings.35 We acknowledge that the trial and sentencing of Charlie Elphicke had concluded and that this was not an attempt to interfere in that trial. The hearing, held under section 5.7 of the criminal procedure rules, into whether the character references should be released, was nevertheless a judicial proceeding. The disclosure of references was a matter that fell to be heard and decided upon by a judge according to court procedures and ought not, therefore, to have been subject to external interference by parliamentarians.

34.We also do not accept the argument, put forward in the written evidence from Sir Roger, Mr Holloway and Col Stewart, that it is a defence of the Members’ actions that “the original and all other letters were sent in confidence” and “in privacy”.36 To the contrary, attempts improperly to intervene in judicial proceedings are worse, and more potentially undermining of public trust in the judicial process, if conducted secretly and without any public awareness or scrutiny.

35.We agree with the Commissioner that the letter of 19 November 2020, and the two follow-up letters, were an attempt improperly to influence a judicial proceeding.

What options were open to the Members to take?

36.We note that in this case a number of alternative avenues were open to the Members.

37.Mrs Justice Whipple had directed BCL LLP, Mr Elphicke’s former solicitors now acting as officers of the court, to notify referees of the hearing regarding the disclosure application and to invite them to make written submissions to BCL.37 The Members concerned could therefore have used the process made available to them by the court, which would have been in accordance with the court’s own rules, with all the necessary measures to ensure openness and fairness that this would entail.

38.In order to raise the broader issue of principle, we consider it would have been appropriate for the Members to make representations to the Lord Chancellor and Secretary of State for Justice, who has policy responsibility for the justice system. We note that Mrs Elphicke told the Commissioner she had written to the Lord Chancellor and to the Attorney General to seek a meeting about the matter.38 Those individuals would not, of course, have attempted to influence the case in question.

39.Col Stewart had also, as noted in paragraph 5 above, raised the issue by asking a question in the Chamber to the Leader of the House during Business Questions. The Leader of the House properly stated in his response that “in individual cases, I understand that it [disclosure of character references] is a matter for the trial judge, under rule 5 of the criminal procedure rules, but I will of course refer this matter to my right hon. and learned Friends the Lord Chancellor and the Attorney General”.39 It seems likely that the Leader of the House had taken legal advice beforehand about what he could and could not say under the House’s sub judice rule.

40.We conclude that the Members had a clear opportunity to make representations to the court in this specific case, according to the court’s own processes, and also had a number of avenues open to them to raise, in an appropriate way, their broader concerns on matters of principle.

Duties to constituents

41.All five Members in this case maintained that they were acting on behalf of their constituents. The Commissioner found that “only Mrs Elphicke could confirm that the constituents in question fell under her constituency. In light of the usual parliamentary convention that a Member does not get involved in constituency casework from outside their own constituency, the other Members did not advance any argument that they had any constituency responsibility for these constituents”.40 Mrs Elphicke appended to her written evidence to us a series of communications from her constituents expressing degrees of distress and concern at the proposal to release character references.41

42.In oral evidence, Sir Roger, Mr Holloway and Col Stewart all acknowledged that they were not acting on behalf of named constituents.42 In their written evidence, however, they had maintained that “the general principle engaged in the release of unredacted character references potentially affects all constituents”.43 They further argued that they had been acting in accordance with the duties set out in Section III of the Code of Conduct, in particular, paragraph 6 of that section which states:

Members have a general duty to act in the interests of the nation as a whole; and a special duty to their constituents.44

43.Our conclusions in response to these arguments are as follows. We do not agree with the claim that a general policy matter affects everyone, and that it therefore affects all constituents, and that it therefore is a “constituency matter”. Further, we note that the general duties in Section III of the Code are not rules of conduct. Members’ compliance with them cannot be investigated by the Commissioner or adjudicated by this Committee. It is clear from the structure of the Code that the general duties of Members set out in Section III are subject always to the enforceable rules of conduct set out in paragraphs 10–18 of the Code. We cannot accept the argument that by acting, or intending to act, on behalf of constituents (in accordance with the general duties of Members), a Member is absolved from responsibility for adhering to the specific rules of conduct or other rules of the House.

Overall conclusion

44.The letters signed and sent by the Members in this case were an attempt improperly to influence judicial proceedings. The Members concerned had several avenues open to them by which they could legitimately have raised their concern over the issues at stake in the case. These included making representations to the court through the proper channels, as they were invited to do, and approaching the Government’s point of liaison with the judiciary, the Lord Chancellor. Despite having these alternative options, they chose to write privately to two senior judges to request their intervention in a decision that properly belonged to Mrs Justice Whipple and that would be made in accordance with the court’s normal processes. Their letters were, appropriately, disregarded and they were rebuked by the Lord Chief Justice. There is no suggestion that the Members concerned actually influenced the outcome of the hearing. But they sought to do so, and by acting as they did risked giving the impression that elected politicians can bring influence to bear on the judiciary, out of public view and in a way not open to others. Such egregious behaviour is corrosive to the rule of law and, if allowed to continue unchecked, could undermine public trust in the independence of judges.

45.We therefore agree with the Commissioner that, in sending their letters of 19 and 22 November 2020, Mrs Elphicke, Sir Roger, Mr Holloway, Col Stewart and Ms Villiers undertook an action which caused significant damage to the reputation and integrity of the House of Commons as a whole, or of its Members generally, and was therefore a breach of paragraph 17 of the Code.

46.We further conclude, as a consequence of the above, that, by using House-provided stationery in order to do so, Mrs Elphicke, Sir Roger, Mr Holloway, Col Stewart and Ms Villiers also breached paragraph 16 of the Code.

47.We note that, although the broad principle has been very long established, there has never been any explicit rule in the Code forbidding Members to interfere with judicial proceedings, nor a general rule against Members attempting to use their position as a Member of Parliament to exert improper influence or gain improper advantage. This had been taken to be self-evident. However, we intend to return to this matter as part of our review of the Code of Conduct for Members. We offer advice to all Members on the matters raised in this case in our concluding comments at the end of this report.

48.The Committee is determined that there should be genuine learning and improvement from this case. We are already reviewing the code of conduct and will consult later this year on changes to the rules which will provide Members with explicit guidance on this.

49.In accordance with our usual practice, we have considered whether there are any aggravating and mitigating factors in relation to these breaches.45 We set out the aggravating and mitigating factors, and the outcome, for each Member individually. Although all five Members acted in unison, we have only imposed a single day’s suspension on the two Members who had substantial legal experience, and the one Member, of longest standing in the House, who still does not accept his mistake; all three of whom should have known better.

Mrs Natalie Elphicke

50.In relation to Mrs Elphicke, we consider the following to be aggravating factors:

• Mrs Elphicke has been a qualified solicitor for over 20 years and is a qualified barrister. We would have expected a lawyer of her experience to have been particularly aware that her actions in this case were an attempt improperly to interfere in judicial proceedings.
• Mrs Elphicke was closely involved in every aspect of this case, and was the driving force behind drafting the original letter of 19 November.
• Mrs Elphicke should have realised that there would be an apparent conflict of interest arising from her close involvement in her husband’s trial.

51.We consider the following to be mitigating factors:

• Mrs Elphicke acknowledged, although only at the end of the Commissioner’s investigation, that she breached the rules of the House and apologised to the Commissioner and to us for doing so.
• Mrs Elphicke is a relatively new Member, having been elected in 2019.
• Mrs Elphicke thought she was acting in the best interests of her constituents.

52.We recommend that Mrs Elphicke be suspended from the service of the House for one sitting day. Mrs Elphicke should also apologise to the House by means of a letter to the Committee, and to the Lord Chief Justice of England and Wales by letter copied to the Committee. The terms of both apologies should be agreed in advance by Mr Speaker and the Chair of the Committee.

Sir Roger Gale

53.In relation to Sir Roger Gale, we consider the following to be aggravating factors:

• Sir Roger is a very senior and long-serving Member of the House, and a former Special Constable. We consider that a Member of his seniority and experience should have been particularly aware of the impropriety of his actions in this case.
• Sir Roger has not accepted that he breached the rules of the House, and continues to claim that his actions, if anything, have enhanced the reputation of the House. He is the only one of the five Members to maintain the claim that their letter may actually have influenced Mrs Whipple’s judgement.46 Sir Roger told us in oral evidence, “I would find a different way of doing it, but would I do it again—would I seek to achieve the same effect? Yes, I would”.47 We are therefore not entirely convinced that Sir Roger would not act in a similar way in the future.

54.We consider the following to be a mitigating factor:

• We believe that Sir Roger conscientiously considered that he was taking the right course of action.

55.We recommend that Sir Roger be suspended from the service of the House for one sitting day. Sir Roger should also apologise to the House by means of a letter to the Committee, and to the Lord Chief Justice of England and Wales by letter copied to the Committee. The terms of both apologies should be agreed in advance by Mr Speaker and the Chair of the Committee.

Adam Holloway

56.In relation to Mr Holloway, we consider the following to be aggravating factors:

• Mr Holloway is an established Member of the House, having been elected in 2005.
• Mr Holloway has evidenced carelessness and inattention in this matter. Despite claims by the other Members in this case that the contents of the letter were carefully considered, and subject to numerous amendments, Mr Holloway told us that he had given the letter only “twenty seconds” thought before agreeing to sign it.48

57.We consider the following to be mitigating factors:

• It appears that Mr Holloway played a peripheral part in drafting and organising the initial letter.
• Mr Holloway has acknowledged, although only at the point at which he gave oral evidence before us, that he breached the rules of the House; and apologised to us for doing so.

58.We recommend that Mr Holloway should apologise to the House by means of a personal statement, and should apologise to the Lord Chief Justice of England and Wales by letter copied to the Committee. The terms of both apologies should be agreed in advance by Mr Speaker and the Chair of the Committee.

Bob Stewart

59.In relation to Col Stewart, we consider the following to be an aggravating factor:

• Col Stewart is an established Member of the House, having been elected in 2010.

60.We consider the following to be mitigating factors:

• It appears that Col Stewart played a peripheral part in drafting and organising the initial letter.
• Col Stewart has acknowledged, although only at the point at which he gave oral evidence before us, that he breached the rules of the House; and apologised to us for doing so.

61.We recommend that Col Stewart should apologise to the House by means of a personal statement, and should apologise to the Lord Chief Justice of England and Wales by letter copied to the Committee. The terms of both apologies should be agreed in advance by Mr Speaker and the Chair of the Committee.

Theresa Villiers

62.In relation to Ms Villiers, we consider the following to be an aggravating factor:

• Ms Villiers is an experienced Member of the House, a trained barrister, and a former Secretary of State for Northern Ireland. We would have expected a Member of her seniority and experience, with legal expertise, to have been particularly aware that her actions in this case were an attempt improperly to interfere in judicial proceedings.

63.We consider the following to be a mitigating factor:

• Ms Villiers has acknowledged, although only at the end of the Commissioner’s investigation, that she breached the rules of the House and apologised to the Commissioner and to us for doing so.

64.We recommend that Ms Villiers be suspended from the service of the House for one sitting day. Ms Villiers should also apologise to the House by means of a letter to the Committee, and to the Lord Chief Justice of England and Wales by letter copied to the Committee. The terms of both apologies should be agreed in advance by Mr Speaker and the Chair of the Committee.

Advice to Members

65.It has long been recognised that Parliament and the courts have distinct constitutional roles. A judge in a 1997 ruling stated that the relationship between them depends on what he described as “a mutuality of respect between two constitutional sovereignties”.49 This applies to the practical, day-to-day relationship between Parliament and the courts. At the heart of the relationship is the concept of comity: that Parliament and the courts should respect each other’s constitutional roles and not seek to interfere in each other’s proceedings or internal affairs.

66.The courts will not interfere with established parliamentary privileges, nor with each House’s right to regulate its own internal proceedings (sometimes referred to as its “exclusive cognisance”). Article IX of the Bill of Rights 1689 is the statutory expression of a wider, older, principle, of freedom of speech in Parliament. On Parliament’s side, each House has agreed to observe a sub judice resolution in formal proceedings, restraining freedom of speech where active cases are in question, and the rules of order prohibit casual criticism of the judiciary.

67.These restraints are not absolute: the courts have found it necessary to examine proceedings on occasion, and the Chair can choose to waive the sub judice rule where matters of particular importance are in question. Moreover, it is recognised that both courts and Parliament have a legitimate interest in Ministerial decisions, so the sub judice rule does not apply when such decisions are in question.

68.Nonetheless, each institution, and the individuals who serve in them, ought to proceed very cautiously and carefully when it considers that it may be encroaching on the rights and privileges of the other.

69.It follows that this self-restraint should apply to the way in which individuals from each institution behave toward the other, when acting in an official capacity.

70.Not only is the principle of comity between the courts and Parliament long established, but each institution has clear rules about the way in which proceedings are conducted, and the proper way to engage with them. As befits the function of Parliament, there are many opportunities for outside individual bodies and individuals to engage with its proceedings, for instance by submitting evidence to select committee inquiries. Nonetheless, a select committee would be surprised if, for example, a judge wrote to them to criticise the way in which they handled their proceedings, or demanded to take part in a private meeting.

71.The courts, because of the nature of their work, have much more structured rules than Parliament. There are clear ways in which individuals can participate in legal proceedings or seek to give their views. Members are as entitled as anyone else to engage with the courts within those rules.

72.But the principle of comity must mean that Members should not try to influence the courts by bringing their authority as Members to bear on a particular active case other than through the normal rules of court. To do so risks undermining the independence of the courts.

73.Decisions of the judiciary must not be subject to external influence, whether by private individuals, the executive or by individual parliamentarians, for the simple reason that decisions of a court should be made on the merits of the arguments and evidence put before it in accordance with fair processes.

74.Members should not, therefore, seek improperly to influence an active judicial proceeding. “Improper” influence means influence exercised outside the established institutional channels for participating in or engaging with judicial proceedings. Just as the House expects the courts to respect Parliament’s right to order its own proceedings, so individual Members should respect a presiding judge’s right to decide how a case should be handled. The law itself has remedies if the judge is in error.

75.For clarity, Members may do the following, subject to the rules of the House (for example, on declaration or paid advocacy):

a)Participate in or initiate legal proceedings;

b)Provide character references;

c)Raise any case in proceedings in Parliament in terms which do not breach the sub judice resolution, or request that the Chair waive the sub judice resolution in a particular case;

d)Engage in private correspondence with members of the judiciary which does not relate to active judicial proceedings;

e)Make private representations to a decision-making body, mediating body (such as an Ombudsman) or regulatory body, which is not judicial in function; or

f)Make, outside of proceedings in Parliament, the same kind of public comment as any other citizen could do.

76.Members should not, however:

a)Make private representations about proceedings which are active or are not definitively concluded to members of the judiciary, outside of the court’s own processes for making representations; or

b)Make private representations about proceedings which are active or are not definitively concluded to a tribunal, such as an employment or immigration tribunal, outside of the tribunal’s own processes for making representations;

c)Otherwise attempt to pressurise members of the judiciary in the exercise of their functions.

As we have found in this case, actions listed above cause significant damage to the reputation and integrity of the House of Commons as a whole and may therefore breach paragraph 17 of the Code of Conduct.

77.If Members are in doubt as to whether it is appropriate to make representations to a particular body, they should seek advice from the Clerk of the House or another senior Clerk before doing so.