Committee on Standards

David Davis Excerpts

Thursday 9th September 2021 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

I have worries about this. I have worries about the Committee’s report, and certainly about the behaviour of the Parliamentary Commissioner for Standards, as I think some of her investigation methods require looking at. Regarding this case, I am concerned that the Committee is effectively setting down guidelines for the use of parliamentary correspondence with respect to the judiciary. On many occasions, I have reason to take interest in miscarriages of justice that may not relate directly to debates in the Commons or to individual constituents, but where I would want to intervene. I worry that today’s judgment curtails that, and I give notice, Mr Deputy Speaker, that I will seek a debate on that issue at some point. We must ensure that this judgment does not constrain those of us who care about the rule of law and about justice, and that we do not interpret this as a sterilisation of the position between Members of the House with real concerns, and the judiciary.

[Chris Bryant (Rhondda) (Lab)]

I am sure the right hon. Gentleman has read the whole of the report because he is a very diligent Member. I know that, and I fully understand the point he makes. I do not want any MP to be prevented from trying to deal with miscarriages of justice. There are proper ways of doing that, and there are improper ways. I hope Members will find it helpful that we had strong legal advice from Speaker’s Counsel on the difference between those two ways, which we laid out in paragraphs 75 and 76 of the report. I hope that is helpful to Members. Our intention and hope is to send that to all Members, and of course I would welcome a full debate at some point.

[Mr Davis]

From memory, this was referring back to a previous judgment of the hon. Gentleman’s Committee back in 1998-2000 on what was or was not appropriate. I think this is not a decision for Speaker’s Counsel; it is a decision for this House as to how the separation of powers works. It is not simply a legal issue; it is a moral and constitutional issue, and it should be decided by the Chamber in total, not by individual officers of the House.

--- Later in debate ---

[Chris Bryant (Rhondda) (Lab)]

I hope the House will bear with me if I speak for a little longer than others have, because it is important to put on the record precisely what the case is. It is always a delight to see the Deputy Chief Whip, and I understand why the Leader of the House is unable to be here. He has explained that to me, and I fully understand. However, if I might just mark the card for the future, it is inappropriate for a Whip to be moving a motion of this kind. It should be moved by the Leader of the House—that has been the tradition in the past—or by another Minister. There is a slight danger that if this gets into party politics, the whole system will fall apart, which would be inappropriate. I am not making any allegation at all about the Deputy Chief Whip; I just think it would have been better—I think he probably does too—if it had been somebody else. [Interruption.] Well, I gather that he has told lots of other people that he wished it was somebody else doing it.

I do not want to rehearse every element of this issue, but I want for a start to draw an important distinction that has not been properly understood in the wider public. This is not about whether the MPs should have written character references for Mr Elphicke. They were at perfect liberty so to do. That is a service that Members provide quite often, for either their constituents or their friends and associates. It is perfectly legitimate to do so, and in normal court proceedings there is a way of doing that. In fact, the courts deliberately have a proper means of gathering and assessing those references. My Committee makes absolutely no criticism whatsoever of the Members concerned for those original character references.

The issue here was that Mrs Justice Whipple, who had presided over the original trial, had to rule in a further proceeding, under rule 5.7 of the Criminal Procedure Rules, whether and to what degree those references should be made public. I think everybody accepts that the final decision she came to was a good one. She sought representations from those who had submitted references, including the five MPs, and expected those to come through Mr Elphicke’s lawyers, who by that stage were acting for the court itself.

The MPs, however, chose to ignore that proper channel, and instead sought to bypass Mrs Justice Whipple. They wrote as MPs to Dame Kathryn Thirlwall, senior presiding judge for England and Wales, and Dame Victoria Sharp, president of the Queen’s bench division, only copying Mrs Justice Whipple, in the hope that they would, in turn, lean on Mrs Justice Whipple. That is the bit that we considered to be inappropriate.

The right hon. Member for Haltemprice and Howden (Mr Davis) is absolutely right that that is not a matter for Speaker’s Counsel to decide; it is a matter for the House to decide, but that is what we have come to a conclusion on. It was an improper attempt to influence a judicial proceeding, and, frankly, it is not the way we do justice in this country. It may be the way that justice is done in other countries, where politicians lean on judges; it is not the way we do business in this country. As we say, the fact that the letter was copied to Mrs Justice Whipple rather than addressed to her directly implies that the Members were attempting to exercise an undue influence over her through her superiors rather than informing the hearing.

[Mr David Davis]

I read the Committee’s report at speed, so I want to be clear in my own mind what crime, or misdemeanour, we are talking about. My understanding from my reading was that the MPs were making representations to protect the privacy of other individuals who had given references. Is that right or wrong?

[Chris Bryant]

They were making representations trying to say that various of the character references should or should not be revealed in public, and that was the matter that was being decided in the judicial proceeding by Mrs Justice Whipple. Mrs Justice Whipple had engaged Mr Elphicke’s original lawyers as officers of the court to seek representations on that matter, but the MPs did not go through that process; they went through a different process by contacting the senior judges, who were senior to Mrs Justice Whipple, and that is the inappropriate action. There was a perfectly legitimate matter of concern to the court and there was a proper process, and the MPs did not use that process; they used an improper process for seeking to influence the outcome.

That is why, as I referred to earlier, in paragraphs 75 and 76 of our report, we drew a distinction between what is a perfectly appropriate means of engaging in a judicial process and what we consider to be an inappropriate one. I am not a big fan of the term “separation of powers”, because, in our history, it has been a bit more complicated than people sometimes suggest. However, I do believe in comity—that is to say that Parliament has its role and the courts have their role, and the two need to be absolutely distinct if we are to make sure that there is proper justice available to everybody.

I am sorry to offend the right hon. Member for Haltemprice and Howden, but I am going to quote Speaker’s Counsel again. She told us:

“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.”

The place for those things to be contested and tested is the court, not here, which is why we have the sub judice rule, apart from anything else. Some Members have suggested to me that this is a remarkably minor point. We disagree. Indeed, the evidence that we were given—not least the comments from the Lord Chief Justice—was very clear that it is not considered to be a minor point.

We scrupulously treated each individual as a separate case. Both the commissioner and the Committee gave each Member a full opportunity to explain themselves in person and/or in writing. That is why we recommended different sanctions in each case.

I should say that the Committee has come under some criticism for being too lenient. The public commentary on this issue mostly suggests that we have been too lenient, not too strict. There are those who think that a longer suspension would have been more suitable. Some have pointed out that a Member could be suspended from the House for five days for calling another hon. Member a liar, but only a single day for what is considered to be a fundamental breach of the rules of the House. I just note that the only press that I have seen relating to today’s debate says that the timing that the Government have inserted in the motion means that the Members will miss only consideration of legislation proposed by Back-Bench MPs, with Friday sittings traditionally not well attended, rather than a busy day when any crucial Government business will be considered.

To all that, I say that the Committee does not recommend suspension from the House lightly. I think it is fair to say that we pretty much agonise about doing this, because we know that it can feel like quite a blot or stain on someone’s career. I have spoken, I think, to nearly all the Members concerned. It is a very serious sanction. Some have pointed out that the independence of the courts is such a basic part of the British constitution that it is genuinely shocking that Members of Parliament should have acted like this. That particularly applies to the long-standing Member who refused to accept that he had made a mistake—although he does now, and he has written a fulsome apology—and the two Members who are qualified or have practised in the law. As we say in our report, all three of them, frankly, should have known better.

However, we also recognise that there has never been an explicit rule forbidding MPs from interfering with judicial proceedings, nor a general rule against Members attempting to use their position as a Member of Parliament to exert improper influence or gain improper advantage. In a sense, that is because we always thought those things to be self-evident.

Let me make one final point. The Committee has already expressed concern—as has the independent expert panel, which deals with cases of sexual harassment and bullying—about the Government’s refusal to bring motions to the House at the earliest possibility. We normally expect these things to come to the House within 48 hours. I say this very gently, but I would worry if the Government were picking and choosing when to bring a motion to the House.

I think Sir Stephen Irwin, the chair of the independent expert panel, wrote to the Government to make the point that it would obviously be an inappropriate and partisan point if the Government were choosing to table a motion on a particular day so as either to remove a Member from a vote or to enable a Member to vote. There is an argument for the motion to be tabled by the Committee itself rather than by the Government, and for the Speaker to grant it precedence. That could only happen, of course, if we were to change Standing Orders, and that is not in the gift of the Committee.

[Mr David Davis]

rose—

[Chris Bryant]

I was about to be on my last sentence, but of course I give way to the right hon. Gentleman—he is so tempting.

[Mr David Davis]

As the hon. Gentleman did to me. I am actually going to commend him for this. The punishment here is not denial of access to the House of Commons; the punishment is reputational. In truth, those who think that someone should be stopped from coming in on Budget day, or whatever, misunderstand the nature of the punishment. The aim of the punishment is not to deny the constituents of those MPs the right to be represented on an important day in the House. The punishment is entirely reputational, so I think the Committee did that right.

[Chris Bryant]

I completely accept that. In fact, I do not like the word “punishment”. Of course this may feel like a punishment, but we prefer the word “sanction”. We have deliberately tried over the past 18 months, since I have been Chair, to create a sort of tariff of sanctions, which we apply according to the seriousness of the misdemeanour and to a set of aggravating and mitigating factors, which we try to bear in mind in relation to each individual. We have laid that out in the report.

It is unusual to have a report that refers to several Members; I am not aware of any case where we have drawn a distinction between each of the Members who have been engaged in a similar action. I hope the House would be reassured that the fact we have drawn a distinction between the five Members, because of their seniority, their previous careers and so on, is an indication that we are only seeking to bring in a sanction that is commensurate with the situation before us. We are not a court of law; we do not have competing parties and everybody represented by lawyers and all the rest of it. However, we seek to give proper consideration to both the reputational risk for an individual, even when an investigation is started, and the reputational risk for the House if we were not to take these matters seriously. We also try to make sure that there is natural justice for each of the individuals, from the beginning to the end.

We would like to bring in some changes to our practices in the future, and we are close to completing the report on the code of conduct, which will make some statements about this. We need to be a bit clearer from the very beginning in explaining to an individual Member what will happen in an investigation when the Commissioner is engaged and when the Committee is engaged we probably need to give a clearer indication of the exact process again, because no Member should have to have all this stored in their head against the day when they might suddenly find themselves in a difficult situation.

I have spoken for too long, as is my wont, but I hope that this has been helpful to the House. If hon. Members are ever in doubt about a course of action they are intending to take, the Commissioner, myself or the Registrar—we have a new Registrar, James Davies, who has just started—are always there to provide confidential advice if people would like it.