Dear Chair and Committee
I am writing following receipt of the memorandum submitted by the Parliamentary Commissioner for Standards dated 25 June 2021 and the letter from Dr James of the same date.
As you will see from paragraphs 82 to 95 of the Commissioner’s decision I had sight of a draft and made clear in a letter dated 18 June 2021 that I accept her decision and apologise for what has occurred.
I have also had sight of Ms Villiers’ letter and agree with the contents.
Before I was elected, another Member of Parliament told me of the great weight of responsibility that there is in serving constituents as their single representative. So often their last hope against injustice, unfairness or bureaucracy. It is a great honour to serve, but it carries with it such a responsibility, which I treat with utmost seriousness and commitment to the people of Dover and Deal.
A discharge of that responsibility fell on my shoulders within a few months of my election, when some of my constituents found themselves deeply alarmed that very personal and private matters of the most sensitive nature might be made public. Hearing from them, I was deeply concerned by this.
These were not Members of Parliament or Lords. Many were local people who had provided what they understood to be character references for the confidential assessment of the judge alone. Suddenly, they found themselves in a situation where they had written about some intensely personal and private matters with which their previous MP had helped them and which they feared would appear in the media and on social media. Matters affecting their children, finances, serious illness and mental health.
Some of the constituents were themselves extremely vulnerable and indeed fragile, I was worried. The release of their private information caused them severe harm and distress. I was very concerned that they were not able to address the judge privately about their deep concerns without the media applicants hearing what was being said.
I am pleased that the Commissioner has accepted that I was attempting to act in the best interests of my constituents and also that there were genuine concerns raised by individuals with me (paragraphs 92 and 93). Whilst she did not feel that she should consider additional private evidence from some of my constituents, I have put that material before the Committee (with their personal details redacted to protect their privacy) to demonstrate the strength of feeling of some of my constituents and the genuineness of the concerns. I also provide a letter from BCL solicitors which confirms the position in relation to the representation of my constituents at the hearing before Whipple J.
Having had time to think about these matters carefully and to read and reflect upon the Commissioner’s draft report, I accept that the correspondence that was sent to senior judges, and which the Commissioner found to be a breach of paragraphs 16 and 17 of the Code of Conduct for Members, was not appropriately drafted and it was wrong of us to send it. When concerns were raised by the Lord Chief Justice, we should have paused and retracted.
I also accept, as the Commissioner has noted at paragraph 94, that I was wrong in the original draft to raise whether a different judge should have heard the application. This was a genuine concern from a number of constituents, as they have expressed in the material provided to the Committee but as I have said, it was not for me to engage with.
I take my share of responsibility for what occurred and for the fact that we did not think through carefully enough what we wanted the letters to achieve.
In considering the sanction to apply, I would ask the Committee to have regard to the following:
Natalie Elphicke OBE MP
Encl: Letter from BCL
Dear Ms Stone
As you may be aware, this firm acted on behalf of Charles Elphicke in respect of criminal proceedings before the Crown Court at Southwark. This firm did not act on behalf of Mrs Elphicke although we provided assistance to her in relation to the matters the subject of this letter. We are writing to you at the request of the Rt Hon Theresa Villiers MP and Mrs Natalie Elphicke MP to confirm the accuracy of the following facts.
In the sentencing hearing of Mr Elphicke of 15 September 2020, reliance was placed on character references that had been obtained by this firm from 34 individuals. The references were deliberately not read out in open court in order to protect the privacy of those individuals. After the hearing, requests were made to the court by third parties for the formal release of those character references. Some of the references were from members of Parliament (‘the Parliamentarian Referees’)
On 3 November 2020, the Court made a direction that this firm should notify all the character referees that they were entitled to make written submissions about disclosure of their reference by Friday 20 November 2020, with BCL to collate and provide such submissions to the Court. None of the character referees was themselves legally represented, by this firm or at all.
Representations were received and advanced on behalf of a total of 34 individuals. This firm collated the representations under a Schedule of Responses. In addition to the representations so collated, this firm was aware that the Parliamentarian Referees had written directly to the Court on 19 November 2020. The schedule recorded the following entry in respect of the Parliamentarian Referees’ direct submission to the Court: “Joint representations understood to have been made in a letter directly to the Court on 19 November 2020.”
The Schedule of Responses provided to the Court by this firm and uploaded to the Digital Case System on 20 November 2020 also included the following entry:
“The Rt Hon Theresa Villiers MP
Joint representations understood to have been made in a letter directly to the Court on 19 November 2020.
As you may be aware, the Parliamentarians who wrote references for Charlie published them in the Mail Online yesterday. I continue to believe that it would be wrong in principle to disclose references from members of the public, but now that mine is in the public domain, I am neutral on the judge’s decision regarding the one I provided.”
The second paragraph above represents the Rt Hon Theresa Villiers MP’s “submissions”, which we provided to the Court in accordance with her request and the Court’s direction.
We can also confirm that on 19 November 2020, we wrote to the Court about the Order that had been made on 3 November. That correspondence included the following:
“We understand that some character referees are concerned about their submissions being sent on to the Court if those submissions:
a)might in turn be shared with the press or any lawyer acting for the press; and/or
b)might be read out or referred to in open court in a way that allows the individuals to be identified; and/or
c)reveals publicly that they (by name) have ‘objected’ to disclosure (which risks being portrayed in the press as ‘an attempt to block publication’ or something similar).
Please could the Court confirm what assurance, if any, we can provide to these individuals. We are particularly concerned about obviously vulnerable constituents who are not public figures and who appear, at present, to be concerned that their representations might not be received in private / in confidence. Please could the Court also kindly confirm whether anyone wishing to attend the hearing on Wednesday to address the Court directly would be required to do so in public or whether it is the Court’s intention to receive any in-person representations on this issue in private.”
That email was sent in consequence of concerns raised by constituents, both directly with this firm and via their MP, Mrs Elphicke and communicated in turn by her to us. Whilst the Court confirmed that our enquiry had been passed to Mrs Justice Whipple, the trial and sentencing judge, no response was received. At least one referee did not advance any representations as a consequence.
We confirm these matters as matters of record, communicated to the Court and recorded in turn on the Court file. For the avoidance of doubt we are of the view that nothing in this letter engages the question of legal professional privilege. Mr Elphicke’s legal professional privilege in instructing and receiving advice from this firm is maintained and is not waived.
BCL Solicitors LLP
92 Note by Committee: This material has not been published, at the request of Mrs Elphicke.
93 Note by Committee: see below, annex to Appendix 2.