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

Appendix 3: Letter dated 28 June 2021 from Rt Hon Roger Gale MP, Adam Holloway MP and Colonel The Rt Hon Bob Stewart MP to the Chair of the Committee

To the Chair and Members of the Committee on Standards

We write in response to the Parliamentary Commissioner for Standards’ memorandum to your Committee regarding correspondence on the matter of publication of character references submitted by constituents to the Courts.

We are grateful to the Parliamentary Commissioner for an invitation to comment on the memorandum but as this invitation extended only to matters of fact rather than substance or argumentation we wish to assist the Committee with our own response as set out below.

The Lords’ Commissioner’s findings

First, it is unfortunate that the Lords Commissioner for Standards reached her decision in the case relating to Lord Freud’s participation without access to all of the available evidence. Members of The House of Commons involved in the matter were offered no opportunity to provide evidence or explanation to assist in consideration of issues pertinent across both inquiries. This silo effect led to the regrettable situation in which Lord Freud found himself obliged to accept the Lords Commissioner`s determination.

Furthermore, this placed the Commons Standards Commissioner in the difficult position of having either to contradict her Lords` colleague or to find against the Commons Members. We have no reason to wish to challenge or undermine the authority of the Commissioner in this respect – she carries out vital work in service of the House. We do, though, regret she has been placed in an invidious position owing to the Lords’ Commissioner’s findings.

We mean no disrespect to Lord Freud or to any other Member of the Upper House in saying that Members of the House of Peers are bound by a different Code of Conduct which reflects that Members of Parliament are elected and therefore have a special duty to their constituents under Section III Paragraph 6 of the relevant Code of Conduct. Whilst there are similarities between the substance of the two inquiries, there are also some crucial differences.

The Lord Macdonald’s letter to The Times

The Lord Macdonald of River Glaven wrote, on 23rd November, to The Editor of The Times. In that letter he asserted that character references should not be published. His letter was printed two days prior to Justice Whipple’s ruling. It would surely be perverse to permit the former Director of Public Prosecutions and former Head of the Crown Prosecution Service to write in public an open letter to the Court and to then censure elected Members of Parliament for writing similarly but in private.

Public release of Character References: Mr Elphicke

We should emphasise that the substantive matters before the Committee go far beyond the singular case of Mr Charlie Elphicke. However, in that particular case, and notwithstanding the impression conveyed by some sections of the media, we have never been engaged in an attempt to justify the behaviour that led to his conviction. The pre-sentence references that were provided in mitigation were offered in the knowledge of Mr Elphicke`s conviction on serious charges and simply in the expectation that his previous public service to his Country and to his constituents would be taken into account when determining his future. By the time that three national newspapers sought the release of all of the references—some containing confidential and private constituents’ information —Mr. Elphicke had been sentenced and the case had concluded. Our actions were taken in defence of the rights of ordinary and innocent citizens and not of Mr. Elphicke.

Public release of Character Reference: General Principle

Section III Paragraph 4 of The Code of Conduct for Members of Parliament notes as a priority that Members have ‘a special duty to their constituents’. This relates to all constituents without distinction in the Code and is therefore a matter concerning all MPs. The general principle engaged in the release of unredacted character references potentially affects all constituents. Beyond the singular case of Mr Elphicke the point at stake is whether constituents in writing character references could reasonably be expected to understand that those references could be made public in unredacted form or with no anonymity applied, either during Court proceedings or on request at any later date.

Under Section III the duty to all constituents is clear and all Members of Parliament are equally bound by the responsibility that we have sought, faithfully and diligently, to honour. Furthermore, our constituents have human rights under the UK’s own Human Rights Act 1998 which incorporates into domestic law the rights enshrined in the European Convention on Human Rights (ECHR). Of particular note is Article 8 of the ECHR – the right to private and family life. In addressing that particular right and interpreting its content we take account that the Courts’ approach has been to apply a test of proportionality; not to apply blanket-style interpretations but to consider the relative balance of argumentation for each individual’s rights within the circumstances of a particular case.

Letters sent to Dame Kathryn and to Dame Victoria Sharp

Our letters were sent to the addressees in their capacities as the Senior Presiding Judge for England and Wales and the President of the Queen`s Bench Division respectively. This reflected the wider principle at stake rather than the immediate matter under consideration by Justice Whipple. However these letters were copied to Judge Whipple both as a professional courtesy and as a response to her invitation to referees to make submissions. They were sent by Members of Parliament, correctly using parliamentary notepaper, very specifically in defence of referees’ rights to confidentiality and privacy. They were not, as The Lord Chief Justice claimed in his letter, ‘issued to the Press Association’.

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 Justice Whipple. To the contrary, the original and all other letters were sent in confidence and made it clear that we were seeking a consideration of the potential ‘chilling effect’ of the release to the press, who had requested them under the terms of a Freedom of Information request, of letters provided by ordinary people, and containing confidential and private information.

Inevitably, because of the timescale required to offer protection to the constituents concerned, the normal Parliamentary route of a debate was denied to us. It was for this reason alone that we took the course of writing to those Members of the Judiciary who we believed had the authority and the duty to assess such matters from a standpoint of principle. The letters were sent in privacy and made it abundantly plain that while we were asking for the underlying principles of a release of confidential and private information to be considered the decision, of course, had to remain with the judiciary.

In the light of the suggestion that this has in some way ‘brought the House into disrepute’ we should emphasise that it is only these proceedings that have attracted any attention to the matter and that is not of our making. The Lord Chief Justice was incorrect to suggest that we had ignored the ‘separation of powers’ convention.

We note that the Commissioner sought the advice of the Speaker`s Counsel. Having said that she was not able to offer legal advice to Members, Ms Saira Salimi then proceeded to offer advice to the Commissioner without any consultation with, or information provided by, those involved in this matter. We believe that her contribution should be discounted.

The Commissioner has made much of an early draft of our letter—one of a number of drafts, containing over a hundred amendments, that were not intended to be sent—to imply that this constituted malice aforethought in respect of Justice Whipple. Nothing could be further from the truth. Indeed, the difference between that draft and the letter that was finally sent demonstrates clearly, if we are to be judged by this, that very great care was taken to ensure that no criticism or interference in the work of Justice Whipple was intended or implied. The Committee’s standards of applying consideration in such cases cannot give weight to the content of letters which are only draft in form and were not sent.

Justice Whipple’s hearing and ruling of 25 November 2020

The Commissioner has quoted, in her memorandum, two paragraphs taken from Justice Whipple’s ruling which, she says, demonstrate that our letter to the judiciary was unwarranted. The effect of those two paragraphs taken out of context is to suggest that a blanket and public release of unredacted character references was not only permissible but also reflected past practice of the Court system. This is profoundly incorrect, as the remainder of Justice Whipple’s ruling, published on 9 December 2020, illustrates sharply and extensively.

Justice Whipple`s ruling is lengthy and complex, and to draw out two paragraphs which sit heavily qualified in substance within her conclusions and summary misrepresents the substance of Justice Whipple’s findings.

Referring to what she describes as ‘The balancing exercise’ Judge Whipple cites the case of Cape Holdings Vs The Guardian and says that:

‘it is necessary to conduct a fact-specific balancing exercise weighing the potential value of information sought in advancing the open justice principle against any risk of harm which its disclosure might cause to the maintenance of an effective judicial process or to the legitimate interests of others’.

She adds, in respect of the case before her, that

‘some referees had particular personal reasons for seeking anonymity and /or confidentiality relating to the content of their references (For example details about medical conditions)’.

and she concluded that for–

‘Constituents and employees (short of civil servants and political advisers) the balance could best be drawn by anonymising the character references (i.e. redacting names and passages which could identify the author) but otherwise allowing the disclosure of the content. This would permit discussion of the substance of the references without risking harm to the private lives of these individuals’

and it was on this basis she determined that the references should be published with some identifying information redacted.

As a result of this ruling not only has the matter been clarified but Justice Whipple has indicated that potential distress and privacy need to be taken into account in such cases – which is precisely what we had requested in our original letter to the judiciary.

Given this satisfactory outcome we believe that far from ‘bringing the House into disrepute` we have done our duty by the electorate, honoured the Code of Conduct and if anything have enhanced the reputation of the House for taking proportionate, timely and appropriate action under difficult, sensitive and pressing circumstances.

Turning to the matter of the misuse of headed notepaper we note that the Commissioner sought the advice of The Clerk of Journals in respect of the references only and accepted that advice. No such request was made in respect of the letter sent to the judges by Members of Parliament on matters directly related to our electorate. The reasons for this omission are unclear but failed to take the opportunity for our letter to the judges also to be considered as falling within permissible activity under the Code of Conduct. Precisely the same determination offered by the Clerk of the Journals would apply; these were not letters `sent for personal gain or for party-political purposes’. They were sent in respect of matters that had been raised, albeit briefly, in the House. To suggest therefore that headed paper was improperly used for this purpose is wrong.

Conclusion

During the eight months since our original letter was written no evidence to substantiate the claim that we have (Section V Paragraph 17) ‘taken action which would cause significant damage to the reputation of the House of Commons as a whole or to its Members generally’ has been proffered and there is no evidence to support the claim that we have not adhered to the instruction that (Paragraph 16) ‘members shall ensure that the use of public resources is always in support of their parliamentary duties’.

We have adhered resolutely to Section III Paragraph 6 of the Code of Conduct for Members of Parliament and have been mindful of the United Kingdom’s obligations under the Human Rights Act 1998 and Article 8 of the European Convention on Human Rights. As such we do not see a case for an apology in the terms offered with regard to the Lords’ Commissioner’s findings and we respectfully request that the Committee does not accept the Commons Commissioner`s findings in full or in part.

We look forward to the opportunity to meet the Committee to answer questions and offer any further clarification in person.

Sir Roger Gale MP

Mr. Adam Holloway MP.

Col. Bob Stewart, DSO, MP




Published: 21 July 2021 Site information    Accessibility statement