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

Appendix 1: Memorandum from the Parliamentary Commissioner for Standards – Mrs Natalie Elphicke MP, Rt Hon Sir Roger Gale MP, Mr Adam Holloway MP, Colonel Bob Stewart MP, Rt Hon Ms Theresa Villiers MP

Summary

This memorandum reports on the inquiry that I began following receipt of information from the office of the Lord Chief Justice of England and Wales. On review of the material, I decided to use my own powers under Standing Order No. 150 to open an inquiry into the Members.

I commenced the inquiry on 8 December 2020.

I investigated whether the Members had acted in breach of paragraphs 16 and 17 of the 2019 Code of Conduct for Members. I found that in writing to senior members of the judiciary ahead of a pending judicial hearing, the Members had risked interfering in that judicial process and, in doing so, had caused significant damage to the reputation and integrity of the House.

Breaches of paragraph 17 of the Code of Conduct are not matters that I can resolve using my own powers granted under Standing Order No. 150 and I have therefore referred this matter to the Committee on Standards for consideration of whether any further action is required.

Report

Background

1.On 20 and 23 November 2020 my office was copied into email correspondence between the Lord Speaker’s office, in the House of Lords, and the Speaker’s office in the House of Commons. That correspondence shared letters exchanged between the office of the Lord Chief Justice and a group of parliamentarians; Mrs Natalie Elphicke MP, Rt Hon. Sir Roger Gale MP, Mr Adam Holloway MP, Colonel Bob Stewart MP, Rt Hon. Ms Theresa Villiers MP (“the Members”), and Rt Hon. Lord Freud.50

2.The letters exchanged between the office of the Lord Chief Justice and the parliamentarians concerned an imminent hearing to determine whether pre-sentencing character references submitted to the court to assist in the sentencing of a former MP, Mr Charlie Elphicke, should be released publicly.

3.The first letter in the chain was dated 19 November 202051 and was sent by the parliamentarians to Dame Kathryn Thirlwall, the Senior Presiding Judge for England and Wales,52 and Dame Victoria Sharp, President of the Queen’s Bench Division.53 The letter was copied to Mrs Justice Whipple who had heard the trial of Mr Elphicke and who was to hear and decide on the application to release the pre-sentencing character references publicly.

4.This letter was replied to by the Private Secretary to the Lord Chief Justice on 20 November 2020,54 which generated a follow-up letter from the parliamentarians to the Lord Chief Justice on 22 November 2020.55 This further letter was also copied to Mrs Justice Whipple, who was also sent an additional separate letter by the Members on 22 November 2020.56

5.A final response was then sent by the Private Secretary to the Lord Chief Justice on 23 November 202057 and which copied the correspondence chain to the Lord Speaker’s office and the Speaker’s office.

6.All of the correspondence sent by the parliamentarians used House-provided stationery.

7.On 19 November 2020, Sir Roger, Mr Holloway, Colonel Stewart, and Ms Villiers published, via the media, the pre-sentencing character references they had provided to the court. A statement was also released expressing the view of the parliamentarians that references provided from members of the public to the court, should not be disclosed.58

What did the Members’ letters say?

8.The Members’ letter of 19 November 2020 to Dame Kathryn Thirlwall and Dame Victoria Sharp states:

R v. Elphicke – Release for Media Publication of Character References Not Made Public in Criminal Proceedings

You will be aware that Mr Charlie Elphicke was recently convicted and sentenced to two years in prison by Mrs Justice Whipple (Whipple J).

We write to express concern that Whipple J is holding a further hearing in this case on whether the character references provided in Mr Elphicke’s case should be published following a request by the Guardian newspaper. These are references which the Judge, when making her sentencing determination, did not read out and where the individuals were not named at the relevant time.

Representation and Privacy, Harm to Vulnerable Witnesses: A matter that greatly concerns us is the effect this proposed hearing is having on members of the public who have given references. In doing so, they were providing information to the court and the justice system to assist the judge in making her decision on sentencing.

Some of the character referees report that they have been put into fear and some have suffered serious anxiety and mental harm at the prospect of being identified by Mrs Justice Whipple.

The judge has ordered the hearing on 25th November to be in open court. Some of the members of the public are afraid to attend or make written representations on their private matters without risk of these representations or objections also being disclosed to the media. While a specific request for their representations to be heard or considered in closed session could be made in relation to them, a number of vulnerable witnesses have expressed concern to their MP as to whether any such assurances, were they to be given, could in any event be relied upon, given the nature of reporting of sensitive issues already in this matter.

We believe that this is quite wrong. Mrs Justice Whipple is aware that some of the witnesses are extremely vulnerable and that a number of the references provided to the court disclose deeply personal and private matters where Mr Elphicke helped referees in his official capacity as a Member of Parliament. This includes references to disability care, severe mental health and business troubles.

We understand that some of these vulnerable witnesses have suffered additional mental harm and distress because of the way this matter is being handled by the Judge; harm to ordinary, private, individuals which was both foreseeable and avoidable.

Many of these most vulnerable witnesses are Mrs Elphicke’s constituents, and they have raised such matters of harm and distress with her directly. She therefore joins us as a signatory to this letter in her capacity as the sitting Member of Parliament for Dover and Deal.

Media Interest – Future and retrospective implications

The request made to Whipple J to publish the character references has come from the media. It is understandable that they would wish to use this case to secure a radical change to judicial practice to establish a principle that character references will now be routinely disclosed. This would provide a source of content to be reported on, especially if it covers references provided in past cases as well as current ones.

However, release of character references to the media in this way, where they have not been read out in the Court proceedings and where such individuals have not been identified or named in such proceedings, has not occurred to date, so far as we are aware.

Indeed, we are not aware of a situation where character references have been released solely for the benefit of the media and outside of the relevant substantive court proceeding.

Consequences to Sentencing Practice: Such a move to release character references in this way could have the chilling effect and harm the criminal justice system.

It has long been the practice that members of the community provide character references to assist the court in determining the sentence that should be passed on a convicted person. They do this in discharge of their public duty to the court and to the community as a whole. The purpose is not to seek to excuse the behaviour which has led to a criminal conviction, only to provide information about the previous general conduct and character of the defendant as it is perceived by the referee. You will be aware that such references are used by judges as an important tool to make the best and most informed decisions. Specific provision is made for this in the sentencing guidelines.

We are concerned that if a person considering giving a character reference thinks it will be published, they may be reluctant to give it. They will fear that carrying out this civic duty, they will be made the subject of vilification in the media or in social media.

If release of character references is allowed by the court, this would be a change of practice with far reaching consequences that would extend to all other cases. Such a change of application could mean the publication of character references in every case. That could well result in bringing an end to the practice and utility of character references.

Role of the Court of Appeal and senior judges: We recognise that the Court of Appeal has jurisdiction to overturn decisions of judges in lower courts. However, in relation to these character referees, and indeed any others in cases where a similar application is made before an appeal could be heard, the harm to vulnerable individuals would already have been done and could not be remedied.

We therefore believe that 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.

9.The Members’ letter to the Lord Chief Justice on 22 November 2020, which was copied to Mrs Justice Whipple, states:

Thank you for the letter sent on your behalf by your Private Secretary, [name redacted], dated 20 November 2020.

We note the concern expressed by [name redacted] regarding our letter to Dame Victoria Sharp DBE and Lady Justice Thirlwell and we hope we can provide you with some reassurance.

You will be aware that trial and sentencing have both concluded in Mr Elphicke’s case. All that remains to determine is a media request submitted for media reasons. We acknowledge that this decision will be made by Mrs Justice Whipple, taking into account all the relevant matters, and had not sought to suggest otherwise. Nothing in our correspondence was intended to challenge the judge’s authority. However, given the harm that will potentially be caused to Mrs Elphicke’s constituents, we felt it important to highlight our serious concerns prior to the forthcoming hearing.

As you acknowledge, our letter of 19 November 2020 was copied by us to Mrs Justice Whipple in order to ensure that she is aware of the points we have raised which we hope she will take into account.

To recap, two distinct issues were set out in our letter. Firstly, harm and distress has been occasioned to wholly innocent parties. Moreover, some of them feel reluctant to make representations at the forthcoming hearing because of the inevitable disclosure of their identities which this would involve. We wanted to make the judge aware of both of these matters.

In choosing to release voluntarily the character references of all sitting parliamentarians, our intention is to assist the court and members of the public who have provided references in this case. We hope that our decision will enable the focus at the hearing to be on whether to release to the media information relating to private individuals and private matters which have been provided to assist the judge in the execution of her duty, without this being overshadowed by the fact that some of the references in the case were provided by public figures.

Secondly, as 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 refer you to the Leader of House’s remarks in Hansard in this regard on 19 November 2020. The Leader of the House has referred this issue to the Justice Secretary and Attorney General.

We have not asked Dame Sharp to interfere with Mrs Justice Whipple’s decision, only to “consider the crucially important matters of principle which are at stake in this case”.

Finally, we can provide the reassurance that you have been misinformed regarding publication of our letter of 19 November 2020. We have not released the letter publicly.

10.The Members’ further letter of 22 November 2020 to Mrs Justice Whipple reads:

We write in relation to the hearing scheduled for 25 November 2020 on potential release of references provided to the court in relation to Charlie Elphicke.

You will have seen our recent letter to Dame Victoria Sharp DBE and Lady Justice Thirlwell. For your information, we are also attaching a copy of the response we are sending to the Lord Chief Justice on this matter.

As we set out in that correspondence, we are worried about the harm and distress that is being suffered by vulnerable members of the public who provided references, some of whom are Mrs Elphicke’s constituents.

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. We certainly do not suggest that you have intentionally caused such outcomes. Nonetheless they are real.

In making the references we provided public, we hope to assist both the court and the other referees because we hope this will enable a greater focus on the question of disclosure of sensitive personal information relating to members of the public, rather than matters relevant only to public figures who provide references in criminal cases.

Likewise, as Parliamentarians we felt duty-bound to highlight the potentially wide-ranging implications of routine publication of references in past or future cases. This general issue has been raised in Parliament in the way that such policy matters regularly are. We would again emphasise that highlighting this in Parliament is not meant, in any way, to interfere with the judicial process, only to highlight the potential harm to ordinary people who in good faith have provided references to assist the courts in making a decision on sentencing.

The scope of my inquiry

11.I decided to open a formal inquiry on my own initiative using the authority given to me by Standing Order No. 150 because I was concerned whether:

12.During the course of my inquiry, I received copies of the pre-sentencing character references that had been written on behalf of Mr Elphicke by Sir Roger,59 Mr Holloway,60 Colonel Stewart,61 and Ms Villiers.62 I noted that the references written by Sir Roger, Mr Holloway, and Colonel Stewart had been submitted to the court on House-provided stationery. I therefore also considered whether such usage was allowed within the House’s rules on stationery and might also amount to a breach of paragraph 16 of the Code of Conduct for Members.

Analysis of the key issues raised during the inquiry

Matter of policy and principle and not about an individual case

13.All the Members told me that their joint letter of 19 November 2020 to Dame Kathryn Thirlwall and Dame Victoria Sharp related to a matter of principle and was not concerned specifically with the earlier criminal court proceedings involving Mr Charlie Elphicke.

14.I accept that an important point of principle was highlighted by their letter; namely, should character references provided to assist a court’s sentencing deliberations be considered private or public documents and, if such references are to be considered as public documents, what harm might arise from their release. However, it is critical to note that the court had not yet taken a view on that decision. A hearing, in open court, with legal representation and full arguments, was scheduled to be heard imminently on 25 November 2020. That hearing had been arranged to consider the specific issues concerned with the release of the character references, including the potential risk of harm to the referees.

15.The wording of the letter of 19 November 2020 did include broad points of principle but it also included much commentary on the specific issues connected to the possible decision to release the character references that were provided in the course of Mr Elphicke’s criminal trial. The letter concludes, in its penultimate paragraph, with a request that the two senior judges act ahead of the pending court hearing scheduled for 25 November 2020.

16.It is clear that the letter was not solely about a point of principle but also pertained to a specific judicial proceeding and sought action ahead of an imminent hearing connected to that proceeding.

Acting on behalf of constituents

17.I have also been told that the letter of 19 November 2020 was written on behalf of constituents who had written pre-sentencing character references for Mr Elphicke and who were now concerned at the harm that might arise from the release of their references to the public domain.

18.However, 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. Nor did Mrs Elphicke provide any correspondence from her constituents requesting her specific involvement in this way.

19.I have also noted that the letter talks about the affected constituents in a general way without names being mentioned. If protection, or special consideration, for these constituents was being sought (for example, the non-disclosure of their reference or redaction of extensive personal details from their reference), then the letter of 19 November 2020 is a poor means of securing that protection or consideration. If a concerned constituent had asked Mrs Elphicke to act on their behalf, it is hard to see how they would be satisfied with the letter of 19 November 2020 alone. Given these issues, I do not agree that the letter of 19 November 2020 can be said to form part of correspondence dealing with constituency casework.

20.I am also mindful that Mrs Justice Whipple had invited written submissions from all the character referees, which was to be facilitated by Mr Elphicke’s former defence team, who were acting as officers to the court. I am 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. If the Members felt that Mrs Whipple’s pending hearing should be heard privately, which may have been a means to allay the fears of the affected referees and facilitate their participation, I am unclear why an application to that affect was not made to the court through Mr Elphicke’s former defence team.

The recipients of the letter of 19 November 2020

21.The Members’ letter of 19 November 2020 was copied to Mrs Justice Whipple. The Private Secretary to the Lord Chief Justice, responded to this letter on 20 November 2020. The Members wrote to the Lord Chief Justice on 22 November 2020 to seek to provide an assurance that were not in any way attempting to improperly interfere with the judicial process, only to draw attention to the important principles involved in the case. At the same time, they wrote to Mrs Whipple to provide her with a similar assurance. In addition, Mrs Whipple was provided with a copy of the letter to the Lord Chief Justice. I accept that none of the Members publicised these letters to the judiciary.

22.The Members are clear that they were in no way seeking to ‘go behind the back’ of Mrs Justice Whipple and they supported this position by their decision to copy Mrs Whipple into both letters to the senior judges. I am unable to accept this reasoning.

23.My view is that these actions risked being perceived by Mrs Justice Whipple as undermining behaviour; by-passing Mrs Whipple, the judicial decision maker, not submitting a direct application to the court ahead of her hearing, but letting her know that she has been by-passed and the issues have been raised with her senior colleagues.

24.I was also told by the Members that these two senior judges were written to in their “administrative/legislative capacity”. I remain unclear what that means as judges do not write legislation.

25.The penultimate paragraph of the Members’ letter of 19 November 2020 to the two senior judges says:

We therefore believe that 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.

Although neither judge has a day-to-day supervisory role managing Mrs Justice Whipple’s work, it seems likely that the Members believed that the two senior judges could exercise an “oversight responsibility” and as such could issue a ruling or direction to Mrs Whipple ahead of her pending hearing.

26.I also note that if the letters to the senior judges were sent only in connection with principles, and related solely to the content of future practice directions, there appears to be no need to have sent copies of the letters to Mrs Justice Whipple as her contribution to future procedural directions would not be required.

The later letters

27.As I have outlined above, the Members told me that their two later letters of 22 November 2020, to the Lord Chief Justice and to Mrs Justice Whipple, were written in an attempt to provide assurances about their earlier letter of 19 November 2020.

28.However, having considered the content of those two letters carefully, I accept that may have been the intention but it is my view that the letters were likely to have been read and perceived by the recipients as further attempts by the Members to intervene and direct judicial decision making.

29.I note the letter of 22 November 2020 to the Lord Chief Justice repeats the Members’ desire that Mrs Justice Whipple take into account their earlier private representations made to Dame Kathryn Thirlwall and Dame Victoria Sharp:

As you acknowledge, our letter of 19 November 2020 was copied by us to Mrs Justice Whipple in order to ensure that she is aware of the points we have raised which we hope she will take into account.

It continues later by stating:

Secondly, as 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.

This letter to the Lord Chief Justice is copied to Mrs Whipple, which, as above, I consider could have been perceived as undermining Mrs Whipple. I am also mindful that the Members’ separate letter of 22 November 2020 to Mrs Whipple further repeats some of the earlier submissions made by the Members to Dame Kathryn Thirlwall and Dame Victoria Sharp.

30.It is my opinion that the two later letters of 22 November 2020 compound the impression that the Members thought it appropriate to correspond privately with the judiciary, including the Lord Chief Justice, about matters that were to be imminently heard and decided in open court. This should not have happened.

The media application

31.The Members included in their letter to the judiciary of 19 November 2020 a statement that reads:

If release of character references is allowed by the court, this would be a change of practice with far reaching consequences that would extend to all other cases. Such a change of application could mean the publication of character references in every case. That could well result in bringing an end to the practice and utility of character references.

32.The Guardian, The Times, and the Daily Mail applied for the release of the pre-sentencing character references supplied on behalf of Mr Elphicke that had been relied on by the court.

33.Following legal representations, a full hearing was convened and heard by Mrs Justice Whipple on 25 November 2020 and concluded that:

The correct position is that the references were put before the Court at a public hearing. Any part of any reference could have been referred to openly at that hearing and reported by the press.

The default position is that the references should be released. This is not to create any new law or break any existing convention or practice.

34.Based on this information, my conclusion is that the release of the character references provided to assist the court in sentencing Mr Elphicke was not a departure from the usual practice of the courts and therefore was not a reasonable basis for the Members to write to the senior judges in the way they did on 19 November 2020.

The draft of the 19 November 2020 letter

35.During the course of my inquiry, Sir Roger provided me with an early draft of the letter of 19 November 2020 to the senior judges.63 I was concerned about the following paragraphs contained within the draft:

Ongoing consideration of Appeals in the Elphicke case

You will be aware that Mr Charlie Elphicke was convicted and sentenced to two years in prison by Mrs Justice Whipple (Whipple J). We are aware that Mr Elphicke is appealing his sentence, together with conviction on grounds which include the conduct of Whipple J. These are matters for the Court of Appeal to resolve and are not the subject of this letter nor do we make comment in relation to them. We draw attention to such matters solely so your Ladyships are aware that this Judge and this case have not proceeded on a basis that is without controversy, and it is already the subject of substantive appeal applications.

In relation to the upcoming hearing on 25 November 2020, Whipple J has ordered the hearing to be in open court, and she recognises that there is considerable media interest. She has made no provision for any aspect of representation to made privately by individuals whose privacy would be so affected. As such, it is impossible for such individuals to reasonably be expected to attend or make written representations about their private matters with any degree of assurance or certainty that the Judge will treat the matters as such. This is, in our view, an irresponsible approach about which we make formal complaint.

Given the above, it is our strong view that Whipple J should be removed from taking any further part in these proceedings and in this case. This particular decision, if release of the information is ordered, could change current and future practice for sentencing. Such a decision should not be made lightly by a single judge. It is a decision that, were it to be taken, should surely be taken by an appropriate authority, such as the sentencing council or a group of leading judges who are responsible for such matters - such as yourselves.

36.The tone of the letter appears to be in the form of a formal complaint directly against Mrs Justice Whipple. The letter also asks the senior judges to take steps to remove Mrs Whipple from the pending hearing about the possible release of the character references.

37.I have asked all the Members about their recollection of this draft.

38.I reminded Sir Roger, Mr Holloway, and Colonel Stewart that their names appear at the bottom of the draft.

39.My attention to this draft is not as a means of ascertaining whether a breach of the rules has taken place in relation to this particular version, as it is clear this is not the version which was sent. However, it is of interest that this appears to be an early draft of the letter finally sent and it is likely to indicate the early intention of at least one of the Members. I accept and recognise that there are major differences between this version and the eventual letter sent but it is difficult to ignore the impression that at some point at least one of the Members wished to seek the removal of a Judge from a live proceeding.

Raising the issue in Parliament

40.On 19 November 2020 the Leader of the House, Rt Hon. Jacob Rees-Mogg, led a session in Parliament on the Business of the House.64 During the questions that followed, Colonel Bob Stewart asked Mr Rees-Mogg:

The Guardian newspaper has applied for the release to the media of character references that were provided to a judge solely to assist in sentencing during a criminal trial. If allowed, this would be a fundamental change of practice, with far-reaching consequences for the criminal justice system. Will my right hon. Friend allow time for an urgent debate on this vital matter?

41.Mr Rees-Mogg replied:

It would obviously be wrong for me to comment on a specific case, but my hon. Friend raises a concerning point. If people have, in a generality, given evidence to a trial on the understanding that is confidential, it risks people not being willing to give such evidence in future if what is believed to be confidential turns out not to be. A just system requires certainty, whatever degree of certainty that is. In individual cases, I understand that it 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.

42.The primary purpose of Business of the House sessions is to set the timetable for the House; hence Colonel Stewart’s Question is concerned with seeking time in parliamentary schedule for a debate on the principle of the release of pre-sentencing character references.

43.In his reply, the Leader of the House does not commit to such a debate, but confirms his understanding that the decision to release pre-sentencing character references is a matter for the trial judge and that he will pass this issue onto the Lord Chancellor and Attorney General for their comment.

44.I have been told by Mrs Elphicke that the raising of this matter in a parliamentary Question had been approved by the Speaker in advance and that as such Parliament’s sub judice rule was not breached by the Question.

45.I do not doubt that information to be true. It is for the Speaker, or his deputies, to rule whether a Question is orderly or not. My inquiry is not concerned with the Question asked by Colonel Stewart, only the connected letter of 19 November 2020 and whether that letter puts the Members in breach of a rule of conduct.

46.I have also been told that having raised the matter on the floor of the House, the subsequent letter of 19 November 2020 was protected by parliamentary privilege.

47.Mrs Elphicke in her evidence has quoted from the Joint Committee on Parliamentary Privilege’s Report of the 2013–14 Session on Parliamentary Privilege.65 However, the section Mrs Elphicke has relied on is connected to correspondence with constituents and constituency casework. As I have already outlined in this memorandum, and as the Members themselves primarily contend, the letter of 19 November 2020 was not correspondence with constituents nor constituency casework but a raising of an issue of general principle.

48.Paragraph 3 of the same Report also defines Parliamentary Privilege as:

Privilege refers to the range of freedoms and protections each House needs to function effectively: in brief, it comprises the right of each House to control its own proceedings and precincts, and the right of those participating in parliamentary proceedings, whether or not they are Members, to speak freely without fear of legal liability or other reprisal

49.The letter of 19 November 2020 does not follow a full debate, a motion, a reading of a Bill, a Committee session, but a request made in the House by Colonel Stewart for time to be put aside for a debate. Given the limited definition quoted above, it would be a surprising extension of privilege if such a request then granted unlimited power of action for the Member concerned and granted any follow-up action undertaken by the Member blanket immunity from a further proceeding of the House (i.e. an inquiry conducted by the Parliamentary Commissioner for Standards).

Advice of Speaker’s Counsel

50.On 26 January 2021 I requested advice from Speaker’s Counsel on the principles involved in this inquiry, namely parliamentary privilege and the separation of powers.66 When Speaker’s Counsel replied on 9 February 2021 she was clear that her role does not extend to the provision of advice to Members and would not have been able to advise any of the five subjects of this inquiry had they approached her before writing their letter of 19 November 2020.67 I have therefore decided to consider the advice of Speaker’s Counsel to be an expert opinion but have been mindful that the Members would not have had access to this expertise before writing their letter. I also draw no adverse findings on the basis that the Members did not approach Speaker’s Counsel for advice.

51.I note the opinion of Speaker’s Counsel is that the debate sought by Colonel Stewart would have been unlikely to have been granted before the court hearing of 25 November 2020 concluded due to Parliament’s sub judice convention.68 This is helpful in clarifying that standing of the pending court hearing and that Parliament would likely to have acted cautiously so as not infringe on the rights of the court to freely determine the matter before it. That caution would have been a wise position for the Members under inquiry to have adopted.

52.Speaker’s Counsel has also included a quote from the Joint Committee on Parliamentary Privilege’s Report of the 1998–99 Session on Parliamentary Privilege,69 which I think strikes at the heart of this matter and which I have shortened to the key sentences only:

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.

53.This is the position rightly adopted by Mr Rees-Mogg on 19 November 2020 when responding to Colonel Stewart’s Question, but is a position that the Members under inquiry have ill-advisedly disregarded.

54.I also note Speaker’s Counsel opinion that:

In addition to those general considerations, 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 them 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).

55.I have already outlined why I think the joint letter of 19 November 2020 was not solely concerning a matter of principle but, even if I were to accept that argument, I cannot see any evidence that the Members under inquiry have considered the risk that their letter might have been perceived by the recipients and by Mrs Justice Whipple as an attempt to influence the conduct and outcome of the hearing scheduled for 25 November 2020. That risk was particularly acute in this instance because the intervention was sent to senior judges and not directly to the judge holding the hearing; this increased the risk that the letter could be perceived as an attempt to influence the conduct and outcome of the hearing.

Correspondence with Ministers

56.In their written responses, the Members also told me that writing to a judge about a matter is the same as writing to a Minister. This is not a valid comparison.

57.Ministers are drawn from the legislature to form the government of the day (the executive) and remain Members of Parliament during their time as a government Minister. A specific role of Parliament, undertaken by the remaining Members of Parliament, is to scrutinise and challenge the work of the government and its Ministers. In that way, Ministers are to some degree directly accountable to Parliament and their fellow Members of Parliament. Writing to Ministers about matters of policy, points of principle, and individual cases forms part of the parliamentary function of all Members of Parliament.

58.The judiciary is independent. Appointments to the judiciary are not made or ratified by Parliament. Judges are not accountable to Parliament. Judges apply the laws written and agreed by Parliament. Judicial decisions are not endorsed or approved by Parliament. Express sub-judice provisions prevent live legal matters from being discussed in Parliament so to prevent undue interference with the independence of the judiciary and, as importantly, to avoid the risk of being perceived as interfering with the independent decision making of the judiciary. Writing to two senior judges requesting that they consider and act on a point of a principle ahead of a pending court hearing risked undermining that independence and is very different to writing to a Minister.

Acting to protect the confidentiality of constituents

59.In his response of 11 December 2020 Sir Roger directed my attention to an email that he had sent to the Lord Chief Justice on 26 November 2020.70 Sir Roger told me that this email laid out his reasoning for joining the earlier letter of 19 November 2020 to Dame Kathryn Thirlwall and Dame Victoria Sharp.

60.His email to the Lord Chief Justice suggests that the pre-sentencing references submitted by former constituents of Mr Elphicke, and now constituents of Mrs Elphicke, were a form of what Sir Roger described as parliamentary correspondence. Sir Roger’s email also suggests that the references were protected by parliamentary confidentiality on the basis that some referees had included details about earlier constituency casework that Mr Elphicke had assisted with. Sir Roger states that it is for these two reasons he sought action from Dame Kathryn Thirlwall and Dame Victoria Sharp ahead of the imminent hearing that was to be heard by Mrs Justice Whipple.

61.I accept that some referees may have referred in their references to constituency casework issues that involved Mr Elphicke, and although I am not clear whether Sir Roger claims that these letters are therefore subject to parliamentary privilege, but as they are not concerned with proceedings in Parliament, but with constituency work, this is unlikely. In any event, if the referees wanted elements of their references kept confidential, they had the opportunity to apply to the court for this. Furthermore, to assist the court, each referee was free to make their own assessment as to how much of their personal information they wished to disclose, including how much detail about any earlier constituency casework matters that Mr Elphicke had assisted them with. The references were submitted to the court under the court’s rules on confidentiality not Parliament’s.

62.I also do not agree that the references were a form of parliamentary correspondence. The referees who were former constituents of Mr Elphicke are not parliamentarians, their references were not written with the authority or consent of Parliament, the content of their references was not checked or approved by Parliament, and nor were their references written to Parliament for consideration by Parliament. These were references written by private citizens to the court for consideration by the court. The content they included was their own and not Parliament’s.

The relevant rules of the House

63.The House of Commons’ Code of Conduct for Members states at paragraphs 16 and 17:

16. 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.

17. 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.

64.The over-arching principles for the use of House-provided stationery are found in paragraph 2 of those rules, which states:

The rules cannot be expected to cover every eventuality; Members should therefore always behave with probity and integrity when using House-provided stationery and postage. Members should regard themselves as personally responsible and accountable for the use of House-provided stationery and postage...

65.Paragraph 3 of the rules lists examples of uses for which House-provided stationery should not be used. That list is not exhaustive. Paragraph 9 of the rules relates specifically to the use of the crowned portcullis. It includes the following statement:

The principal emblem of the House is the crowned portcullis. It is a royal badge and its use by the House has been formally authorised by licence granted by Her Majesty the Queen. It should not be used where its authentication of a connection with the House is inappropriate, or where there is a risk that its use might wrongly be regarded or represented as having the authority of the House….

My findings

Use of House stationery for character references (paragraph 16)

66.Part of my inquiry involved investigating whether Sir Roger, Mr Holloway and Colonel Stewart had breached paragraph 16 by using House-provided stationery to write a character reference for Mr Elphicke, to assist the court with sentencing.

67.I sought the advice of both the Director of Customer Service and Delivery and the Clerk of Journals in relation to this matter.

68.The Clerk of the Journals advised:71

The MPs concerned say they were asked by Mr Elphicke’s legal representatives to assist by providing references. They received no personal benefit, this was not electioneering and it was not in direct support of a political party. I see no reason why they should not have used House of Commons note paper to give these references. In addition, these particular character references in all cases referred to knowledge the respondents had as a result of their association with the ex Member precisely because they were MPs.

69.I agree with this position. The Members have told me that they provided the reference for Mr Elphicke as fellow parliamentarians and not as a personal friend. I think this distinction is important. My view is that providing a reference for a fellow Member, in the terms that they did, can be categorised as a “parliamentary function”72 and so is permitted under the current rules.

70.I find that Sir Roger, Mr Holloway, and Colonel Stewart did not breach rule 16 by using House-provided stationery to write a reference for Mr Elphicke to the court for sentencing purposes.

Writing to the judiciary about a pending hearing (paragraph 17)

71.My inquiry also considered whether the letters written to the judiciary amounted to a breach of paragraph 17 of the Code of Conduct. I have set out my considerations above, and I have concluded that the letters of 19 November and 22 November 2020 to the judiciary do amount to a breach of paragraph 17.

72.An application to the court by the media had been legitimately made, and accepted, regarding the release of pre-sentencing character references submitted on behalf of Mr Charlie Elphicke. The court had recognised that competing interests were involved in that request and set a date to hear the application. The court had recognised that the referees may all have differing views and concerns about the release of their references and had appointed Mr Elphicke’s former defence team to act on a collective basis for the referees. Ahead of that hearing, the Members bypassed the court, opting not to submit their concerns directly, and wrote to two senior appeal judges. They then followed that initial letter of 19 November 2020 with two further private letters of 22 November 2020; one to the Lord Chief Justice and a second to Mrs Justice Whipple, the judge in charge of the pending hearing.

73.The draft of their letter of 19 November 2020, although not sent, questioned the fitness of Mrs Justice Whipple, who had also been Mr Elphicke’s trial judge, and called for her removal from the pending hearing. The final version of the letter sent to the two senior judges, whilst encompassing a point of principle, sought their intervention ahead of the pending hearing, raising privately the very issues that the pending hearing had been convened to hear and consider publicly.

74.Had the two senior judges acted on that letter, a live judicial matter would have been interfered with due to the act of a group of parliamentarians. That would have seriously compromised the separation of powers that underpins our unwritten constitution.

75.The later letters of 22 November 2020 repeat the Members’ position, again intervening ahead of a pending court hearing and seeking to raise privately the issues that hearing was due to consider. Those letters compound the initial mistake of 19 November 2020.

76.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. That was not appropriate and is an action that caused significant damage to the reputation and integrity of the House of Commons and amounts to a breach of paragraph 17 of the Code of Conduct.

Use of stationery for the letters to the judiciary (paragraph 16)

77.Having determined that the letters of 19 November 2020 and 22 November 2020 were inappropriate and a breach of paragraph 17, it follows that the letters cannot reasonably be said to form part of a legitimate parliamentary duty. On that basis, I have also concluded that House-provided stationery should not have been used in this way and that this is an aggravating factor that also amounts to a breach of paragraph 16 of the Code of Conduct.

Decision

78.I investigated whether, Mr Holloway, Sir Roger and Colonel Stewart had breached paragraph 16 of the Code of Conduct and the associated stationery rules by using House-provided paper to write a reference for Mr Elphicke. I find that the three Members did not breach paragraph 16, as writing a character reference to assist the court, in the terms that they did, was a legitimate parliamentary duty.

79.I do not accept that the Members wrote to the judiciary on the point of principle only. I find that the contents of the letters referred significantly to the proceeding that was before Mrs Justice Whipple and which was to be heard on 25 November 2020. The letter of 19 November 2020 also directly sought the intervention of the two senior judges in the pending hearing. That cannot be said to be writing on a point of principle only.

80.I find that it was wholly inappropriate for the Members to write to the judiciary about live judicial proceedings. This is in direct contradiction with the doctrine of the separation of powers, which is an essential component of the UK constitution. The letter of 19 November 2020 to the judiciary was an attempt to influence the outcome of the hearing on the 25 November 2020 that was before Mrs Justice Whipple. The later letters compounded that error of judgement. I find that by using their authority as Members of Parliament in this way, the Members have breached paragraph 17 of the Code of Conduct for Members. The action the Members have taken, regardless of their intentions, has caused significant damage to the reputation and integrity of the House of Commons.

81.Following my conclusion that the Members should not have written to the judiciary, I find that using House-provided stationery for this purpose was a breach of paragraph 16 of the Code of Conduct for Members, which only permits the use of House-provided resources in support of parliamentary duties.

Comments from the Members on my draft decision

82.As is my usual practice, on 7 May 2021 I shared a draft of this memorandum with the Members for their comments on its factual accuracy.

83.Colonel Stewart replied on 11 May 2021 to confirm he accepted my draft.73

84.Sir Roger replied on 12 May 2021 to confirm that he did not intend to comment at this point.74

85.Mr Holloway replied on 29 May 2021 to confirm that he did not want to make any comments on the draft.75

86.Ms Villiers replied on 18 June 202176 and stated that she accepted my decision and that she recognised that the correspondence to the judiciary “was not appropriately drafted and it was wrong of us to send it”. Ms Villiers highlighted that her workload meant that the letters were not adequately considered before being sent and that incorporating the views of five Members had made the matter confused.

87.Ms Villiers also now recognised that the letters entangled two distinct aims; firstly, protection for the members of the public who had acted as character references for Mr Elphicke and, secondly, the wider policy issue on the release of character references. In respect of the entangling of those issues, Ms Villiers told me:

Regrettably, we allowed the point we wished to make on general principles and their impact upon the criminal justice process to become entangled with the hearing of the Guardian’s application. I accept your conclusion that elements of the 19th November 2020 letter went beyond mere illustration of the potential impact of the general principle. I accept that it created the impression that we were asking the judges to intervene in the case before Whipple J. Although our intention was to correct that misunderstanding in our letters of 22nd November, they did not achieve that aim and I accept your finding on that as well.

88.Ms Villiers told me that the letters to the judiciary should be seen not as an isolated act but as part of a wider approach consisting of three parts:

The letter to judges was only one part of a three stranded approach: firstly to encourage the members of the public affected to engage with the court process; secondly to highlight the policy concerns in Parliament; and thirdly to raise those policy questions with senior judges.

And for that reason, Ms Villiers’s stated that the letters to the senior judges should not be seen as bypassing Mrs Justice Whipple and the pending hearing. I accept the point that the Members may not have intended to bypass Mrs Whipple, but I remain concerned that in writing to senior members of the judiciary the Members did bypass Mrs Whipple.

89.Further, Ms Villiers pointed out that judicial practice on the release of character references is not straightforward and is a developing area of law with few existing authorities to rely on. Ms Villiers highlights that due to this, Mrs Justice Whipple’s decision was not a simple one and involved a balancing act of the various factors involved. I accept those points and my finding in paragraph 34 should be read in light of this.

90.Finally, Ms Villiers suggested some further amendments to our interview transcript, which I was happy to accept and have incorporated into the attached bundle of evidence (see item WE23).

91.Mrs Elphicke also replied on 18 June 202177 and told me that she accepted my decision. Mrs Elphicke told me that she had seen a draft of Ms Villiers’s response and concurred with its content.

92.Mrs Elphicke also told me that she had always been seeking to act in the best interests of her constituents and particularly due to her concern that adverse press and social media coverage might harm her constituents. I accept that Mrs Elphicke was attempting to act in the interests of her constituents.

93.In light of my findings at paragraphs 18 and 19, Mrs Elphicke also offered to produce additional private evidence from some of her constituents who had contacted her with concerns about the possible publication of their character references. As the outcome of my inquiries, and the evidence collected, is placed on the public record, and due to the time this inquiry has already taken, I have decided that this is not an offer that I can take up. I am also content this late evidence would not change the substance of my conclusions, as my decision does not rest on the issue of whether the correspondence to the senior judges was constituency casework or not. Nor do I question the genuineness of the concerns raised by these individuals with Mrs Elphicke, only the appropriateness of the way these concerns were conveyed to senior judges.

94.Mrs Elphicke commented on the early draft of the letter of 19 November 2020 that is referenced in this report, at paragraphs 35 to 39, and the request in that letter that a different judge be assigned to hear the application to release the character references, and told me that:

I now recognise that it is not for me to make these sorts of judgments or seek to be involved in them in any way, and I would take care not to do so if a similar situation occurred in the future.

95.Finally, Mrs Elphicke suggested some further amendments to our interview transcript, which I was happy to accept and have incorporated into the attached bundle of evidence (see item WE11).

Conclusions

96.I have found Mrs Natalie Elphicke MP, Rt Hon. Sir Roger Gale MP, Mr Adam Holloway MP, Colonel Bob Stewart MP, Rt Hon. Ms Theresa Villiers MP to be in breach of paragraphs 16 and 17 of the Code of Conduct for Members when writing to Dame Kathryn Thirlwall and Dame Victoria Sharp on 19 November 2020, when writing to the Lord Chief Justice on 22 November 2020, and when writing to Mrs Justice Whipple on 22 November 2020.

97.Breaches of paragraph 17 of the Code of Conduct cannot be resolved by use of my own powers under Standing Order No. 150. This is because a breach of this paragraph is, by its nature, an extremely serious matter.

98.A breach of paragraph 16 can on occasion be resolved by use of my own powers under Standing Order No. 150. However, in this instance, the breach of paragraph 16 is intrinsically connected to the breach of paragraph 17 and to resolve the matters separately would not be appropriate.

99.I am therefore referring this inquiry to the Committee on Standards for their consideration and resolution.

Kathryn Stone OBE

Parliamentary Commissioner for Standards

25 June 2021

Appendices to the Commissioner’s memorandum

Appendix 1: Chronology of my inquiry

Date

Event

5 August 2020

Date of Colonel Stewart’s reference for Mr Elphicke

5 August 2020

Date of Sir Roger’s personal reference for Mr Elphicke

2 September 2020

Date of Mr Holloway’s personal reference for Mr Elphicke

7 September 2020

Date of Ms Villiers’s personal reference for Mr Elphicke

15 September 2020

Mr Elphicke’s sentencing hearing

19 November 2020

Bob Stewart poses question on floor of the House during Business Questions

19 November 2020

Media statement and publication of the Members’ characters references

19 November 2020

Members send letter to Their Ladyships Dame Kathryn Thirlwall and Dame Victoria Sharp ccing Mrs Justice Whipple

20 November 2020

The Private Secretary to the Lord Chief Justice responds to the Members’ letter

22 November 2020

The Members send a letter to Lord Chief Justice and Mrs Justice Whipple

25 November 2020

Hearing in relation to disclosure of character references before Mrs Justice Whipple

8 December 2020

My inquiry commences

23 December 2020

Sir Roger’s initial response received (dated 11.12.20)

9 January 2021

Colonel Stewart’s initial response received

11 January 2021

Ms Villiers’s initial response received

14 January 2021

Mrs Elphicke’s initial response received

14 January 2021

Mr Holloway’s initial response received

26 January 2021

Advice sought from Director of Customer Service and Delivery (re Mr Holloway, Colonel Stewart and Sir Roger only)

26 January 2021

Advice sought from Speaker’s Counsel

29 January 2021

Response from Director of Customer Service and Delivery

9 February 2021

Response from Speaker’s Counsel

15 February 2021

Advice shared with the Members

3 March 2021

Interviews undertaken with Mr Holloway, Colonel Stewart, and Sir Roger

4 March 2021

Interview undertaken with Ms Villiers

4 March 2021

Advice sought from the Clerk of the Journals (re Mr Holloway, Colonel Stewart and Sir Roger only)

5 March 2021

Response from the Clerk of the Journals

16 March 2021

Interview undertaken with Mrs Elphicke

22 March 2021

Interview transcripts shared with the Members and final evidence or submissions invited

26 March 2021

Ms Villiers’s final submissions

30 March 2021

Mrs Elphicke’s final submissions

31 March 2021

Sir Roger’s final submissions

7 May 2021

Draft memorandum shared with the Members for their review and comments

11 May 2021

Response from Colonel Stewart received

12 May 2021

Response from Sir Roger received

29 May 2021

Response from Mr Holloway received

18 June 2021

Response from Ms Villiers received

18 June 2021

Response from Mrs Elphicke received

Appendix 2: The conduct of my inquiry

1.I started my inquiry on 8 December 2020 by writing to the Members and inviting their response to my concern that their actions had potentially put them in breach of paragraph 16 and/or 17.78 I also asked the Members the same specific questions about:

2.Sir Roger Gale replied promptly on 11 December 2020 enclosing a draft of the Members’ letter of 19 November 2020 to Dame Kathryn Thirlwall and Dame Victoria Sharp. Also enclosed was a further email from Sir Roger to the Lord Chief Justice of 26 November 2020 plus a copy of Sir Roger’s pre-sentencing character reference that was on House-provided stationery.79

3.The other four Members all requested additional time for their replies, which I allowed. Their replies were then received in mid-January and submitted by way of a template response, although the reply from Mrs Elphicke included additional details about her constituency connection to at least some of the other character referees.80

4.Of the other four Members, Mr Holloway and Colonel Stewart both confirmed they had submitted pre-sentencing character references using House-provided stationery, Ms Villiers confirmed that she had also submitted a character reference but had used her own stationery, and Mrs Elphicke clarified that she had not submitted a pre-sentencing character reference.

5.The replies from the other four Members also directed my attention to a press statement that had been put out on 19 November 2020 by Sir Roger, Mr Holloway, Colonel Stewart, and Ms Villiers, which concerned the same issue (i.e. the imminent hearing to determine if the pre-sentencing character references provided on behalf of Mr Elphicke should be released to the public) and to which their own character references had been appended.

6.As is my usual practice, I decided to seek advice from the relevant House authorities on the issues raised by my inquiry. On 26 January 2021 I wrote to the House’s Director of Customer Service and Delivery for his advice on the use of House-provided stationery and to Speaker’s Counsel for her advice on the propriety of parliamentarians writing to the judiciary about a live judicial matter.81

7.On 15 February 2021 I was able to write to the Members sharing the advice I had received from the Director of Customer Service and Delivery and Speaker’s Counsel.82

8.In the meantime, I had decided it would be appropriate to interview all the Members to better establish their aims in writing to the judiciary and, in light of the draft provided by Sir Roger, the contribution that each Member individually made to the drafting of the letters sent to the judiciary as well as their contribution to the press statement of 19 November 2020. I also saw this an opportunity to get the Members’ individual comments on the advice that I had received. My letter of 15 February 2021 therefore also invited the Members to arrange an interview with me for the week of 1 March.

9.I interviewed Sir Roger, Mr Holloway, and Colonel Stewart, on 3 March 2021,83 and Ms Villiers on 4 March 2021.84 For diary reasons I was not able to meet with Mrs Elphicke until 16 March 2021.85

10.While planning for these interviews responsibility for providing advice on the use of House-provided stationery changed in the House, with responsibility moving from the Director of Customer Service and Delivery to the Clerk of the Journals. In the interests of fairness, I wrote to the Clerk of the Journals on 4 March 2021 to seek her supplementary advice on Sir Roger’s, Mr Holloway’s, and Colonel Stewart’s use of House-provided stationery.86

11.Having interviewed all the Members, I shared the interview transcripts with the Members on 22 March 2021, and where relevant the advice from the Clerk of the Journals, and invited final comments on the various pieces of advice I had received and any final points they wished me to considered before I finalised my decision.87

12.Mrs Elphicke,88 Mr Holloway,89 Sir Roger90 and Ms Villiers91 all took this opportunity to make final submissions.

50 As a Member of the House of Lords, Lord Freud’s conduct falls outside my remit

51 WE1 evidence bundle

54 WE2 evidence bundle

55 WE3 evidence bundle

56 WE4 evidence bundle

57 WE5 evidence bundle

59 Pages 54 to 55 of WE13 evidence bundle

60 Page 80 of WE16 evidence bundle

61 Page 103 WE20 evidence bundle

62 Page 125 WE22 evidence bundle

63 WE6 evidence bundle

65 Parliamentary Privilege – Joint Committee on Parliamentary Privilege (Session 2013–14, Joint Committee on Parliamentary Privilege, Parliamentary Privilege, HL Paper 30/HC 100, published 3 July 2013)

66 WE27 evidence bundle

67 WE9 evidence bundle

69 Parliamentary Privilege – First Report (Session 1998–99, First Report, Joint Committee on Parliamentary Privilege, Parliamentary Privilege Vol I, HL 43-I/HC 214-I, published 9 April 1999)

70 Pages 53 and 54 WE13 evidence bundle

71 WE8 evidence bundle

72 House-provided stationery and pre-paid envelopes are provided only for the performance of a Member’s parliamentary functions (para 3 of the stationery rules)

73 WE37 evidence bundle

74 WE38 evidence bundle

75 WE39 evidence bundle

76 WE40 evidence bundle

77 WE41 evidence bundle

78 WE25 evidence bundle

79 WE13 evidence bundle

80 WE10, WE16, WE20, and WE22 evidence bundle

81 WE26 and WE27 evidence bundle

82 WE30 and WE31 evidence bundle

83 WE14, WE17, and WE21 evidence bundle

84 WE23 evidence bundle

85 WE11 evidence bundle

86 WE32 evidence bundle

87 WE34, WE35, and WE36 evidence bundle

88 WE12 evidence bundle

89 WE19 evidence bundle

90 WE15 evidence bundle

91 WE24 evidence bundle




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