Rupert Lowe MP v Independent Complaints and Grievance Scheme

Royal Courts of Justice, London  ·  Tuesday, 17 March 2026

Claim No: AC-2025-LON-003806  ·  Court 72  ·  Before: Justice Martin Chamberlain

The Issue
The issue before the Court was whether the Independent Complaints and Grievance Scheme(ICGS, or the "Scheme") is protected from judicial review. The ICGS (supported by the Speaker of the Commons, Lindsay Hoyle) says it is protected, as it is covered by parliamentary privilege. Mr Rupert Lowe MP says it is not, and the ICGS is therefore subject to judicial review (Mr Lowe lacked confidence in ICGS's handling of a complaint against him, and wanted the Court before him to permit a judicial review).

The Court was of modern design, using beech wood, surrounded on all four sides by shelves containing old law books grouped by colour. A clock hung on the left wall as viewed from the public gallery (and on the right from the judge’s bench).

Fifteen members of the public sat on two rows of seats at the back of the Court, seven sat on the left (as viewed forward, beneath the clock), and two (including the present writer) on the opposite side. Familiar faces included Catherine Blaiklock, Howard Cox, Lembit Öpik, Andrew Bridgen, Steven Woolfe (from midday), Montgomery Toms, Callum Watkinson of Hunt & Gather Reporting and Video, and Jonny Wong & Will Coleshill of VoxPopuli Media.

In the centre of the Court were three rows. Rupert Lowe, wearing a dark blue business suit and patterned red tie, sat in the middle row, with perhaps two colleagues. On the same row to Mr Lowe’s right, and on the row behind, were six representatives of ICGS, most with laptops. Directly behind Mr Lowe were other people, possibly press.

The front row in the centre held the two barristers in black gowns and wigs: Christopher Newman (representing Rupert Lowe, the Claimant) and Ms Sarah Hannett (representing ICGS, the Defendant). Directly behind Ms Hannett in the middle row was her Junior, a young woman also dressed in gown and wig.

At the very front, beneath the judge’s raised bench, sat two court employees, an older man and a younger man; they sat facing towards the barristers with their backs to the judge.

Shortly before 10.30am, two more members of the public arrived and there were no seats remaining. Rupert Lowe gestured them over and shuffled up to make room. Another woman entered and did not have a seat. A security guard brought a chair over towards her, and then sat on it himself! However, she found a seat elsewhere. At some point before the hearing started the guard left the Court and did not return.

At 10.35am, the Court clerk said “All rise” and Justice Martin Chamberlain entered. He did not have a wig, but a black robe with two red stripes, like lapels.

Mr Newman rose to say he was appearing again for the Claimant [the previous hearing having been on 17 February 2026]. On the question of housekeeping, he said there were three bundles: one of 371 pages, a new supplementary file of 425 pages, and an updated authorities bundle.

Justice Chamberlain noticed a woman had brought a dog into the Court in a carry bag and said, “If there’s any interruption, you’ll have to take the dog out”.

Justice Chamberlain said a lot of argument had been heard already and it was not necessary to go over old ground; today was for new arguments and submissions (“new points”). Mr Newman estimated the time needed for the proceedings was 10.30am to 12.45pm for himself, and 12.45pm to 4.0pm for the Defendant’s response. He added that he was optimistic they would not need all that time because his Lordship [Justice Chamberlain] was already familiar with the case — but it would depend on whether the “judge asks difficult questions”.

At this point, the dog yelped and Justice Chamberlain said, “I’m sorry, but you’ll have to take the dog out”. The lady left, with the Chihuahua just visible in the bag.

Justice Chamberlain advised the barristers that there was a prohibition on the identification of one person in the case.

Claimant’s Case (Christopher Newman)

Mr Newman commenced the case for Rupert Lowe. He said the Court has had “no supervisory jurisdiction” over Members of Parliament in the House for centuries, during which time Parliament was a “no go zone”. That cannot now be right [in the present context], and it was necessary to examine the relevant history. Mr Newman divided the history into four periods: pre-1995; 1995–2018; 2018 to July 2020; July 2020 to date.

Period 1 (pre-1995)

During this period, disruption by MPs was identified by the Speaker, and the House of Commons would decide by resolution whether to suspend or expel the MP. Mr Newman said there were historic examples in the supplemental bundle; one of the cases was from 1581, although it was difficult to decipher from records what MPs’ exact transgressions were. Another case was from 1628 and involved MP Mr Sawyer impeaching the Speaker’s memory in a scandalous [parliamentary] sermon, leading to Mr Sawyer being expelled from the House of Commons. The third example was in the authorities bundle at page 99. In 1884, in Bradlaugh v Gosset, a Sergeant-at-Arms [Gosset] expelled an MP [Bradlaugh] until the MP agreed not to disturb the proceedings of the House.

Justice Chamberlain agreed that prior to the Civil War, concepts of parliamentary privilege were different. Mr Newman said that, prior to 1995, there was no set of rules and no independent commission — disciplinary processes were carried out by MPs as an “internal matter”. The House did not involve itself as to MPs external employees; for these, there were employment courts, tort, and police for criminal law.

Period 2 (1995–2018)

What changed in 1995, Mr Newman said, was the “cash for questions” scandal and the subsequent Nolan report which introduced a new framework for parliamentary standards, including a structured Code of Conduct and independent Commissioner for Standards. This was done to try to “minimise the perception that MPs were able to mark their own homework”. The parliamentary Commissioner for Standards would report to a Select Committee. Justice Chamberlain asked, “Where’s that”; Mr Newman replied page 69 in the supplementary bundle.

Mr Newman said this departure was tested in the Fayed case in 1997–98, argued by Stephen Richards QC in one of his last cases. He and David Pannick [opposing counsel] were “very capable public practitioners”. [In Fayed, the Court of Appeal held that the Commissioner for Standards’ functions were part of Parliament’s internal disciplinary processes and so protected by parliamentary privilege.]

In 1998, therefore, a “generous approach” was taken to parliamentary privilege; Parliament remained an “internal zone”, but Mr Newman said his Lordship must see that the Commissioner for Standards working with a relevant Committee puts a different focus on matters. “When the Court is considering new arrangements, it has to test it against ‘first principles’”.

Mr Newman cited a case in Canada about a chauffeur who brought a claim against the Speaker regarding discrimination. The counter claim relating to privilege that sought to immunise [Canadian] MPs failed. During the case, the Court looked at English authorities to test the claim against “necessity”.

Justice Chamberlain asked, “What is the doctrine of necessity”? Mr Newman said the necessity test concerned whether something could have an adverse effect on parliamentary privilege, to ensure that Parliament “could do its job”. Justice Chamberlain described this as “legislators doing their legislative work”; hence, courts cannot interfere with Parliament. Justice Chamberlain said that, if people could sue, that would inhibit people from giving “frank accounts”, and that would deny Parliament the information it needs. Mr Newman said witnesses would fear being sued; they would have “one eye on the lawyer over their shoulder”. Hence the need for the necessity test to be passed.

Period 3 (2018–2020)

Mr Newman said that in Periods 1 and 2, the Code of Conduct did not regulate relations between MPs and staff, but in 2018, the Independent Complaints and Grievance Scheme (ICGS) was set up. Mr Newman referred to points in the Defendant’s bundle, and Justice Chamberlain looked for them (onscreen). Ms Hannett rose to say the bundle was the same as before, but Justice Chamberlain had difficulty finding the references. There appeared to be a discrepancy in page numbers and Justice Chamberlain asked “Does anyone have a hard copy in Court?” Ms Hannett said her copy had notes on it, and that she would email a copy to the Court clerk. Justice Chamberlain said there was “no signal here” and at 11.19am the Court rose, to enable an email copy to be sent.

After a short break, the Court resumed. Mr Newman said the House had accepted a new behavioural code. MPs were expected to accept responsibility; a new Rule 17 said MPs should treat employees with “dignity, courtesy and respect”. The new ICGS arrangement had a budget and was independent, but represented no “structural change” [because although the ICGS was a separate body, findings and sanctions were still determined by MPs via the Standards Committee].

Period 4 (July 2020 to date)

Structural change occurred because of the Cox report. Dame Cox heard evidence that Members had turned a blind eye to misconduct. It was therefore inappropriate for members to sit in judgement on fellow MPs on matters relating to mistreatment of staff. This was “meat and drink” to Dame Cox, who was “absolutely critical” about the system (although not about the individual expertise or commitment of members involved) — she said the system failed the test of independence and impartiality. Her solution in October 2018 was to “entirely sever the link” between the assessment of complaints and MPs and so create a wholly independent system.

Mr Newman said that his Lordship will see that Parliament’s cognisance is “pared back” — the Commissioner will oversee Parliament, except in matters relating to employee grievance so that “no perception would exist of MPs exonerating their mates”. What changes, therefore, is that the Commissioner on Standards refers matters to a panel of experts, as opposed to a committee of MPs. The link between MPs and ICGS was “broken by design”.

Mr Newman said it was important to read certain documents but as he expected judgment to be referred, he would take Justice Chamberlain through references that Justice Chamberlain could read later.

Mr Newman referred to the Independent Expert Panel (IEP), created by Standing Order following the Cox Review; its deliberations were [still] subject to parliamentary privilege, and therefore not the courts. Even if it went to judicial review, it would not succeed because of the confidence in the IEP’s independence.

NB: this latter comment momentarily seemed to run counter to what Mr Newman was arguing, but Mr Newman (looking towards Ms Hannett) said these were “arguments for both of us”. He said that people knew about the limits of privilege and sought to resolve them as systems progressed, but they had accepted that one day the matter would have to be decided by a judge (Mr Newman gestured towards Justice Chamberlain, meaning he was the judge in question). Mr Newman said that the ultimate question as to the limits of privilege was for courts to resolve, not the House. Mr Newman added that Jacob Rees-Mogg had also said the nature of the ICGS would have to be decided by the courts.

Mr Newman summarised, “Where have we got to?” For hundreds of years, parliamentary discipline was in every sense an internal matter for MPs. In 1995, matters developed leading to the Code of Conduct, which brought in someone from outside the House, but still subject to the House’s supervision. In 2020, following the Cox Review, the supervisory role held by a committee of MPs was removed by “deliberate design”.

What does the ICGS say? asked Mr Newman. Its reference to the “mutuality of respect” between Parliament and the courts resolves nothing, and it says nothing that addresses the removal of the vital link between itself and Parliament. Mr Newman said that the reasoning in the 1998 Fayed case is not known as it was given verbally, but the case of Chaytor is binding. In Chaytor the evolution of parliamentary privilege was clear: the law in 2025 was more in the Claimant’s [Rupert Lowe’s] favour than in 1998, because of Chaytor.

“In my submission the principle in Chaytor applies to administrative schemes and the ICGS is a type of administrative scheme.” “If it isn’t an administrative scheme then what sort of scheme is it?” Mr Newman then refers to his opponent’s own description of the ICGS in a previous skeleton argument which stated: “The ICGS is not a legal entity but is a workplace scheme set up and run by parliamentary organs and House administration.” — Christopher Newman, for the Claimant, as noted by Callum Watkinson in court

Mr Newman said it was his submission that this is the law. Immunity allows rogues to break the law, knowing they can’t be sued. But parliamentary privilege [relating to employee relations] had been “eaten away to practically nothing”. The doctrine of necessity was needed on the floor of the House, but Parliament relinquished its “exclusive cognisance” in employment matters. Mr Newman said there was a distinction between the scheme and its implementation, the latter of which can be examined by a court.

Justice Chamberlain said that with regard to ICGS, “you’re upholding the alignment with natural justice” [meaning, presumably, access to judicial review upholds natural justice]. Mr Newman said ICGS would have to find a way around Chaytor.

Justice Chamberlain asked: “How do they do that?” Mr Newman said [they can’t, because] ICGS was “House administration with a committee on top”.

Mr Newman said the Claimant’s case was stronger than just Chaytor — “even if Chaytor did not exist, we would win because of Fayed and the ‘deliberate design’ — but even if neither Chaytor and Fayed existed, we would still win on the basis of first principle and the necessity test”.

Mr Newman went on: Parliament intended that the Scheme be implemented fairly in accordance with natural justice. In the Canadian case, where the security guard had been dismissed, the summary of its decision was useful; parliamentary privilege helped preserve separation of powers by protecting only those areas “strictly anchored to its rationale”. Canada was “looking back” to Westminster during the case. “Some comfort could be drawn that the same conclusion had been reached by people thousands of miles away with different but illuminating language”.

Mr Newman said that the Defendant had argued delegation of the right of Parliament had not been abrogated. He said in reply that in 2018, judicial review meant the Code of Conduct was extended to cover harassment, including of staff. Pre-2018, Parliament had never concerned itself with these matters; they had been left to employment law, tort and criminal law. After 2018, Parliament was looking at something entirely new.

There was some talk about whether criminal law still held sway. Justice Chamberlain referenced the example of someone being punched in the division lobby; there could still be prosecution. Justice Chamberlain also asked if ICGS could order compensation for unfair dismissal. Mr Newman said 2018 brought “a new bundle of rights and responsibilities” so that matters might be looked at by the ICGS, or a tribunal, or both. Therefore, the idea that matters could be considered by a judge was changing “ancient rights” was not right, since the new administrative arrangement after 2018 existed outside of the Chamber, run by staff not even allowed in the Chamber [of the House]. In fact, it would be illegal for them to enter the Chamber. When Justice Chamberlain is to consider whether there was no binding precedent, it was changed in Fayed, and again in Chaytor. Mr Newman said it was important not to let the law “ossify”.

Mr Newman referred to something being a “dead letter”; Justice Chamberlain said “that’s not a good point”; Mr Newman said he was referring to natural justice in the general sense.

Mr Newman said to test the point, one must consider hypothetical “extreme cases”; for example, a future chair of the IEP not disclosing his wife had an interest in the outcome, leading to an undisclosed bias. This would be unfair, as the complainant was entitled to have a non-biased judge.

Mr Newman posed: “What would the remedy be?” According to ICGS, if a conflict of interests arose, the remedy would be within Parliament, and the absence of a remedy by Parliament would be taken to mean privilege applies. Mr Newman referred to this as the “tough luck” outcome. Referring by implication to his client Mr Lowe, Parliament’s response could lead to a penalty for an MP but no remedy for an MP who had been wronged; for example, found guilty of bullying. Justice Chamberlain asked if a motion could be passed in Parliament to remedy the matter. Mr Newman said that “was entirely separate and unwieldy”.

Judicial review will look at almost any situation as “something could go wrong”. Mr Newman stressed the simple fact that judicial review was available would mean “everyone would have to behave, even if the chances of judicial review were one in a hundred”. Without judicial review, there would be temptation to drop the ball, not do their job properly, or ignore the law. Judicial review “keeps public institutions in check” and provides a “strong incentive to obey the law”.

Privileges which say “tough luck” must be as narrow as need be to protect a vital function, to give people hope that they have future access to the law.

Mr Newman asked his Lordship to see the “independence of the Scheme” in 2024, well into Period 4. Mr Newman said his Learned Friend’s skeleton argument argued ICGS was only independent in an administrative sense, not in a constitutional sense. Mr Newman said he was told by his client that he sent his skeleton argument around Westminster, and Jacob Rees-Mogg said the severing of the link was “vital”.

Mr Newman referred to the “heated dispute” that occurred the day of the last hearing, 17 February, when Nigel Farage addressed journalists from the stage at which he made the following statement:

“And that was the moment at which, you know, I realised we just had to get rid of him, and get rid of him as quickly as we could. And I think, in terms of the way we dealt with that, we were probably more brutal than the other parties. But you know what? That’s the way it’s going to be.”

Mr Lowe regarded this as a “relevant admission”. Mr Lowe wrote to ICGS on 2 March that this “amounts to a confession to remove me”. Justice Chamberlain said this was “straying away from the purpose of the hearing” and getting into the merits of the specific case.

Mr Newman said he wanted to bring Justice Chamberlain up to date. Days after that incident, a new investigator was assigned, as the previous investigator who had done interviews, etc. had a “career break”. Mr Newman said it must be a “very unusual set of circumstances” for an ICGS investigator to take a different job in the middle of a case. Justice Chamberlain said they would look at the privilege matter first and “if I find in your favour”, the latter case would be looked at then.

(At various points during the day, individuals would leave the public gallery, pausing at the door to bow respectfully to the judge, while others would enter.)

Defendant’s Case (Sarah Hannett KC)

At 12.40pm, Sarah Hannett rose to give the reply for the Defendant, ICGS. As the points had been argued only two weeks ago, she said she would “make headline points” rather than repeat the detail. Justice Chamberlain said it was four weeks ago, and there was a brief exchange along the lines of “time flies”.

Ms Hannett said her argument consisted of three over-arching parts, the first of which subdivided into six points.

Part One

1) Outline of the Scheme

The House of Commons set rules in its Code of Conduct for all forms of misconduct, including bullying and harassment. No distinction was made in the 12 December 2022 foundational document which “governed the internal architecture” of the Scheme. The Code was a matter for the House of Commons; MPs had decided the “dignity, courtesy and respect” approach. 23 June 2020 was the date of removal of the Committee on Standards [and its replacement with the Independent Expert Panel].

Justice Chamberlain said that Ms Hannett was relying not just on a continuation of the Code but that its independent application is not constitutionally independent. Ms Hannett said, yes, someone has to interpret it with a “broad discretion” and “means by which those determinations should be made”. There was therefore not a meaningful distinction between the Code and its application [meaning, presumably, that the Code foresaw the need for its own flexibility]. This she said was part of a “wider architecture that was internal rather than external”.

2) The Scheme itself

The Scheme was created in July 2018 by House of Commons resolution, and the House has since amended it. The House therefore has the power to amend or even abolish it, this being an “indication of the internal architecture”.

Ms Hannett says the fact that the ICGS was given mechanisms to police itself demonstrates that it should do so. “There is an internal mechanism within the House for scrutiny of the manner in which the Commissioner and the ICGS will carry out its duties”. She says that the fact that the ICGS could be ended tomorrow by a resolution of Parliament demonstrates that it is a Parliamentary vehicle and therefore covered by privilege. — as noted by Callum Watkinson in court

3) Constituent parts of the Scheme

The Scheme has an independent parliamentary Commissioner for Standards and an Independent Expert Panel, appointed and removed by the House of Commons. Justice Chamberlain asked whether, for more serious offences, sanctions would be approved by the House. Ms Hannett said that the Scheme’s sanctions, right of appeal, etc. derive from Standing Orders (i.e. the House).

Ms Hannett said privilege is often not relevant as matters are confidential; an investigator would do an initial assessment and send it to the Commissioner. Judicial review in this early stage would seem unusual. Judicial review would apply when the Commissioner gets involved, and that is when privilege applies. Justice Chamberlain asked what oversight there is of the Commissioner. Ms Hannett said he is accountable to the IEP and ultimately the House. He can be removed or be the subject of motions; the remedy lies in the House which has the ability to amend the Scheme.

1pm — Break for Lunch

2.02pm — Court resumes

Justice Chamberlain asked that as a general principle the courts can’t interpret Standing Orders? Ms Hannett said that would be venturing into a constitutional area and the Court would find itself in conflict with Article 9 of the Bill of Rights 1689 which has implications for separation of powers.

At this point, a member of the public at the back tried to draw Justice Chamberlain’s attention. Justice Chamberlain said politely “We do not have a mechanism for the public to contribute to argument”. The member of the public said it was difficult to hear what was being said. Justice Chamberlain said that was a “proper point to make”; it did not help that counsel were facing forwards. Ms Hannett said she would speak up for the benefit of those behind her.

There was talk of courts construing and applying Standing Orders, and the implication for the cognisance of Parliament. Justice Chamberlain made the point that the Court would have to interpret the Standing Order in order to take a view, thus causing a circular problem. He said that Chaytor drew a distinction between attacking the expenses scheme itself and specific matters like individual expenses, such as a duck house [laughter from the gallery].

4) Bullying and harassment

Ms Hannett said the ICGS never asserted privilege over criminal offences. Justice Chamberlain agreed that assaults can go to the police. Ms Hannett said the Code of Conduct is for MPs as part of their parliamentary work, and does not prevent employees making tribunal claims. A helpline exists, as do procedures for formal complaints, informal resolutions and formal assessments of complaints, including complaints against MPs.

5) Rights of Appeal

Ms Hannett said respondents and complainants could appeal to the IEP, which was presently chaired by Adrian Fulford; there was a procedure, an appeal to a subpanel with “checks and balances built into the scheme”. Justice Chamberlain asked if the IEP were experts or lawyers. Ms Hannett replied it included ex-judges, people with union and employee relations backgrounds.

6) The Assurance Board

The ICGS was overseen by its Assurance Board, set up by a House of Commons resolution on 16 June 2025. Justice Chamberlain queried the date. Ms Hannett conferred with the group of ICGS attendees and said it was not in place at the time in question; there was a “shadow group”.

(Occasionally, in response to Justice Chamberlain’s various questions, Ms Hannett would confer silently with the ICGS personnel behind her.)

Ms Hannett summarised the above by saying there is an “internal mechanism within the House to ensure natural justice”. The natural justice was not from the Common Law but from Parliament itself. Justice Chamberlain said Parliament set this up to replace or replicate the role of a court, but he said “natural justice” was not helpful as it was merely ensuring a “fair hearing”. Ms Hannett said precisely, to ensure the process was impartial.

Ms Hannett said ICGS was just one part, as non-harassment claims remained as they did pre-June 2020. Justice Chamberlain: but not at the time of Fayed? Ms Hannett said yes, but there was no IEP. For minor cases, it was within the power of the Commissioner to determine the outcome. For more serious cases, the Commissioner would make a recommendation to the Select Committee [pre-June 2020] or IEP [post-June 2020].

Justice Chamberlain said that Fayed was a deliberate decision to put this out of the power of Parliament, out of the power of MPs to investigate each other. He added, however, the arrangement was not coherent. Ms Hannett said that the House created a new Committee to look at the standards system again in 2021 after [a paid-advocacy scandal involving] Owen Paterson MP.

Ms Hannett said all the above represents an overarching set-up by Parliament, wholly inconsistent with the view that Parliament wanted the matter dealt with by the courts. Justice Chamberlain said that Parliament found it [the exact privilege boundary] a difficult discussion, and that they had taken the view “leave it to a court to decide”.

Part Two

Ms Hannett said the Scheme falls within the remit of the House of Commons. The starting point is that the House retains cognisance since the 16th century, and that remains the position now for non-ICGS cases; she read out authorities for this view.

Ms Hannett said that Mr Newman had said there was something new, but that’s “just not right”. There was nothing about the 23 June 2020 resolution [that set up the IEP] that waived parliamentary cognisance or passed it to a court. It was an internal mechanism for appeal and oversight. Ms Hannett said that the suggestion of something novel isn’t correct.

“One has a privilege that has existed as long as this privilege has. If the Commons was intending for that to change — intending to allow the courts to have supervision of the discipline of its members — they would have done it by statute.” Justice Chamberlain tells her: “It’s a slightly odd way of looking at it. You’re almost inviting me to try to divine the intention of Parliament when Parliament itself was unsure.” — as noted by Callum Watkinson in court

Ms Hannett: It was always understood that Parliament had jurisdiction over its privilege. 

Justice Chamberlain: By statute? 

Ms Hannett: Yes, or by specific resolution. She gave an example of a resolution where certain privileges were reduced. 

Justice Chamberlain: Is there a mechanism to give up privileges for the time being? 

Ms Hannett: Yes, by resolution or Act of Parliament. 

Justice Chamberlain: An Act of Parliament could hand it over to the Courts?

Ms Hannett: Yes.

Ms Hannett said the IEP and Commissioner were not constitutionally separate; they were part of the same internal architecture. Justice Chamberlain remarked: what the House gives, it can take away.

At some point, Ms Hannett said in regard to Hansard that one cannot cherry-pick statements and apply them to the collective of the House [this probably refers to Mr Newman’s argument that Parliament was open to courts deciding the privilege boundary in the post-2020 period].

Ms Hannett said the rationale for privilege remains the same. If reports are not privileged, people can be sued, such as NAO [National Audit Office] investigators. Justice Chamberlain said a critical report could be deemed libelous. Ms Hannett said the ALR case had points applicable here.

Part Three

Ms Hannett wanted to address Chaytor and “first principles”. The reason why the Supreme Court said cognisance did not apply in that case because it drew a distinction between scheme and implementation. The ratio of Chaytor [i.e. the case’s binding legal principle] was criminal intent. The House never extended cognisance to criminal matters.

Ms Hannett said the Scheme is not administrative, but “investigative, adjudicative and supervisory” into whether the Code of Conduct has been breached.

“When one looks at the Code of Conduct there is a considerable amount of discretion given to the investigator to decide whether the Code has been breached. That is a very long way from the administrative function the court is looking at in Chaytor.” — Sarah Hannett KC, as noted by Callum Watkinson in court

Justice Chamberlain asked what if an MP made an “honest mistake”? Ms Hannett said that would not be criminal; Chaytor was specifically about a criminal offence.

Regarding first principles, Ms Hannett said Fayed was a curious case; the Court was going to apply exclusive cognisance, according to Lord Woolf [and did so, in a generous way].

In response to a question from Justice Chamberlain, Ms Hannett said “boundaries were not very tidy”; it was better to look at decision on a case-by-case basis.

At some point, Justice Chamberlain and Ms Hannett exchanged comments about what appeared to be a circular concept; Justice Chamberlain said he would have to intervene to make a judgment on privilege, yet privilege denied the courts to intervene. Justice Chamberlain said: how are we able to measure the scope of privilege if it was privileged? Perhaps in this context, Justice Chamberlain assured Ms Hannett, “I’m not going to write a monograph on it. I have enough cases to do!” The case, he said, involves asking “What is exclusive cognisance”.

Ms Hannett said one had to respect the separation of powers.

Either Justice Chamberlain or Ms Hannett said that they were getting close to the necessity test if investigators can be sued. Investigators must operate “robustly and fearlessly”, and that a level of protection was needed so they were not “chilled or cowed”. Ms Hannett said the argument rests with Parliament setting it all up.

Regarding the Canadian case, Ms Hannett said Canada’s Privilege comes from a different source, Canada’s 1867 Act, and that one has to be careful planting text of necessity in 1867 to current circumstances.

Claimant’s Reply — 3.30pm

Mr Newman responded to Ms Hannett. He paraphrased Parliament as saying, “We hope we can have privilege but it is for a court to decide”. He said we have a document where Parliament says “We’re not lawyers” and cited Lindsey Hoyle as an MP who a former Royal Marine [rather than having a legal background]. Justice Chamberlain said MPs would have a “high quality of legal advice” and added “So has Mr Lowe” [laughter]. Mr Newman modestly demurred.

Mr Newman said the Supreme Court thought the distinction between scheme and implementation was helpful in determining the extent and parameters of Parliament’s exclusive cognisance. Mr Newman said the Court [referring to the present one] needs to provide reasoning. Either Mr Newman or Justice Chamberlain said this would mean looking beyond, to the extent that one needs to.

Mr Newman said the idea that ICGS is not administrative but “investigative, adjudicative and supervisory” is a “distinction without a difference” [Callum Watkinson records Mr Newman as also saying: “We would argue that the payment of expenses is all three”].

Mr Newman said Chaytor “grasped the nettle” [by showing courts should scrutinize implementation in specific cases]. Mr Newman posed to Justice Chamberlain, “What is the case you have to decide?”; if pushed, privilege applies from the point a complaint is made. It is not for the Court to “salami slice” privilege.

Regarding the Code of Conduct described by Ms Hannett, Mr Newman said it is not surprising the Code says what it says; this did not address exclusive cognisance. “Tough luck” was not a real remedy; people should have a remedy in their control [i.e. via a court]. Politics is a “dirty business” and is by its nature “cut and thrust” with whips and competing interests. The House is not unbiased and is not capable of acting like a court; therefore, the Court should not “shut its eyes”.

Mr Newman said his Learned Friend says one can go to the police and say ICGS got it wrong, but it was inevitable that someone would then say “It’s already been dealt with by ICGS” and therefore privilege would be said to apply.

Justice Chamberlain said that if an employee went to a tribunal, the court would not be adjudicating over the Code of Conduct, but over the terms of contract. Mr Newman said there was an overlap. Investigators were not legally qualified; Kathryn Stone [Commissioner for Standards 2018–2022] was not a lawyer.

Mr Newman said clauses relating to “indignity” and “disrepute” were “too broad” to infer a rule’s existence. Justice Chamberlain said bullying and harassment was straightforward to understand. Mr Newman replied harassment was clear but not bullying, which could allude to voice tone, looking at someone in a certain way, not inviting people to certain events, etc.

At 4.15pm, proceedings drew to a close. Justice Chamberlain thanked the barristers for the way their arguments were made; the case involved a much bigger point and was legally complicated.

Justice Chamberlain said he would deliver judgement “shortly after Easter”. The two Parties would see the judgment first, embargoed, for editorial corrections. Judgement would be handed down in Court or electronically.

Proceedings closed at 4.20pm.

Notes & References

1.  @HuntandGatherTV — X (Callum Watkinson, Hunt & Gather Reporting and Video, live from court)

2.  @vpopulimedia — X (Jonny Wong, VoxPopuli Media — Executive Summary)

3.  The “cash for questions” affair (1994–1997) involved allegations that several Conservative MPs, including Neil Hamilton, accepted payments in return for tabling parliamentary questions on behalf of Mohamed Al Fayed. Neil Hamilton has always denied the allegations and the matter remains contested.

4.  R (Al-Fayed) v Parliamentary Commissioner for Standards [1998] 1 WLR 669 (CA)

5.  Canada (House of Commons) v Vaid [2005] SCC 30 — the former Speaker’s chauffeur claimed racial discrimination in his dismissal, and the House invoked privilege to block a tribunal. The Supreme Court of Canada rejected the privilege claim, ruling that privilege applies only where strictly necessary for Parliament’s legislative functions (the “necessity test”).

6.  Dame Laura Cox Independent Inquiry Report (15 October 2018)

7.  R v Chaytor [2010] UKSC 52 — Chaytor and two other former MPs had faced criminal charges over fraudulent expenses.

8.  In Chaytor, the Supreme Court drew a distinction between the parliamentary expenses scheme itself (its creation, design, and rules, set by the House) and its implementation (day-to-day administrative acts, such as MPs submitting claims and processing payments — and thus making false declarations).

9.  R (ALR and others) v Chancellor of the Exchequer [2025] EWHC 1467 (Admin) — a judicial review of the removal of VAT exemption on private school fees. The court ruled that NAO reports qualify as “