Committee on Standards publishes report on the conduct of Mrs Natalie Elphicke, Sir Roger Gale, Adam Holloway, Bob Stewart, Theresa Villiers

• Read the full report: Mrs Natalie Elphicke, Sir Roger Gale, Adam Holloway, Bob Stewart, Theresa Villiers
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• Committee on Standards

The 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. The information suggested that the five MPs 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, in a way that sought improperly to influence a judicial process.

The Committee is grateful to the Parliamentary Commissioner for Standards, Kathryn Stone, for her investigation and memorandum, which is appended to the Committee’s full report. Also appended is additional written evidence to the Committee from all five Members. Transcripts of oral evidence from Sir Roger Gale, Adam Holloway, and Bob Stewart are available on the Committee’s website.

The Committee on Standards’ report briefly summarises the Commissioner’s findings before setting out the Committee’s own analysis and conclusions.

The Commissioner’s findings

Mrs Elphicke, Sir Roger, Mr Holloway, Col Stewart and Ms Villiers 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. Mrs Justice Whipple had heard the trial of a former Member, Charlie Elphicke, and was to hear and decide on an application 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”. 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”.

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”.

The Members replied on 22 November to the Lord Chief Justice, stating that “Nothing in our letter was intended to challenge the judge’s authority.” A separate letter was also sent 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.”

All the letters were also signed by Lord Freud, whose conduct falls outside the Commissioner’s remit. The House of Lords Commissioner reported on her investigation into Lord Freud’s conduct earlier this year. She found that he had breached that House’s Code of Conduct and recommended that he make a personal statement on the matter in the House.

The Parliamentary Commissioner for Standards 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 found that this amounted to a breach of paragraph 17 of the Code.

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. 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 Conclusions

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.

The Committee therefore agrees with the Parliamentary Commissioner for Standards 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.

The Committee further concludes, 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.

Concluding recommendations and sanctions

In accordance with the Committee’s usual practice, aggravating and mitigating factors in relation to breaches of the Code of Conduct for MPs are set out alongside the outcome for each Member individually in the full report. While acknowledging that all five Members acted in unison, the Committee reported that it “has 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”.

The Committee recommends that Mrs Natalie Elphicke, Sir Roger Gale, and Theresa Villiers be suspended from the service of the House for one sitting day, and should apologise to the House by means of a letter to the Committee.

The Committee recommends that Adam Holloway and Bob Stewart should apologise to the House by means of a personal statement.

All five Members should also apologise to the Lord Chief Justice of England and Wales by letter copied to the Committee. The terms of all the apologies (both by letter and by personal statement) should be agreed in advance by Mr Speaker and the Chair of the Committee.

The Committee is determined that there should be genuine learning and improvement from this case. Advice to all Members on the matters raised in this case is included in the concluding comments at the end of the full report. The Committee will also consider this matter as part of ongoing work on the review of the Code of Conduct for MPs.

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