MPs should not risk derailing tribunals by insulting senior King's Counsel and their clients

The text of my complaint about John Nicolson MP to the Parliamentary Standards Commissioner. This inflammatory undermining of Counsel and the Defendant must stop.

Re: Complaint regarding John Nicolson MP

11th November 2022

Dear Ms. Stone OBE (Commissioner for Parliamentary Standards),

Introduction

1.       I write to make a formal complaint in respect of the conduct of the above member regarding his social media comments about the ongoing tribunal case of Mermaids v LGB Alliance (in which he appeared as a witness). Specifically, I complain that the member is in breach of Part II (Duties of Members), rule 5 “Members have a duty to uphold the law”. The evidence suggests the member is undermining the regular operation of the law by:

(i)                  Commenting in inaccurate, inflammatory and abusive terms on live proceedings, and

(ii)                Making derogatory, abusive and unjustified comments about (i) Leading Counsel for the Defendant and (ii) the Defendant (which can amount in law to contempt).

Evidence

2.       The member in question appeared as a witness for Mermaids and plainly holds extremely strong views regarding the case. The First Tier Tribunal heard closing submissions in this case on 7th-8th November 2022 and Karon Monaghan KC appeared as leading counsel for the LGB Alliance. In closing submissions, Ms. Monaghan KC described the member’s evidence as “vitriolic” (see Annex 1 for image).

3.       Ms. Monaghan KC was quite entitled to make this comment according to the Bar Standards Board Handbook which contains the relevant code of conduct. It provides the following relevant matters (emphasis added):

·         (A1 para 1 – Page 1) Our system of justice depends on those who provide such services acting fearlessly, independently and competently, so as to further their clients’ best interests, subject always to their duty to the Court.

·         (Guidance gC22 – Page 13) Client’s best interests: Core Duty 2 and Rules C15.1-.2 require a barrister to promote fearlessly and by all proper and lawful means the lay client’s best interests and to do so without regard to their own interests

·         (Rule C15 – Page 17) You must promote fearlessly and by all proper and lawful means the client’s best interests.

It follows that if Ms. Monaghan KC reasonably took the view that the member’s evidence should be described as “vitriolic” (which she plainly did), her duty to fearlessly present her client’s case entitled and indeed required her to make such a comment. The Commissioner may take the view that counsel must be free to fairly make such comments and that such freedoms are essential to upholding the law. The Commissioner may also take the view that Counsel should not be in anyway discouraged or abused for making legitimate comment in any case.  

4.       The Commissioner may therefore take the view that Leading Counsel was simply doing her job according to the relevant applicable professional standards. Had any comment been outside of those duties the Judge would have intervened. Frankly, any suggestion that Leading Counsel of Ms. Monaghan KC’s status might have done so would in any event be misplaced, to quote the leader of the Scottish bar, Roddy Dunlop KC, she is “one of the UK’s leading equality KCs”. It is also of note that no objection as to the propriety of this this comment was raised by opposing King’s Counsel. I note also (and agree with) Mr Dunlop KC’s view that the member’s comments on social media were “disgraceful” and “spectacularly unwise”, which is a view the commissioner may wish to seriously consider (see Annex 2 for image).

5.       The law in respect of publications prejudicial to the administration of justice is well settled and the following principles are relevant:

·         Members of the public prejudging cases posting on social media may incur liability for contempt (see Ex parte British Broadcasting Corporation; R v F[1])

·         Contempt also arises in cases of harassment, vilification or intimidations of defendants generally, (see A-G v Yaxley Lemon[2] and A-G v ex parte McMahon[3])

·         Publications which deliberately set out to prejudice possible legal proceedings and create such a risk constitute contempt (A-G v News Group Newspapers plc[4])

6.       The commissioner will no doubt regard Part II (Duties of Members), rule 5 “Members have a duty to uphold the law” and rule 7 requiring that members “should always behave with probity and integrity” as requiring members to respect and further the rule of law and the regular operation of courts and tribunals according to law.

Relevant material complained of

7.       The chronology in this case suggests the member took umbrage at leading counsel’s (perfectly proper) comment on his evidence in her closing submissions and determined to personally attack her and her lay client on social media in a fashion the Commissioner may regard as ill-tempered.

8.       Specifically, the member tweeted the following (emphasis added):

(i)                  (9:39 PM, Nov 9, 2022) I’m sure Karon Monaghan is a relatively competent barrister. But I found her nervous seeming and reliant on briefing notes from third parties passed to her. She was clearly unable to defend the abusive behaviour of her clients - the so called ‘LGB Alliance’. (See Annex 3 for image)

(ii)                (1:29 PM) Nov 10, 2022) I understand barrister representing the sinister ‘LGB Alliance’ applied to have my testimony disregarded at the end of the hearing during closing arguments. Experienced legal counsel tell me that this is telling and shows they were rattled by it. Good. #tranrightsarehumanrights (See Annex 4 for image)

General basis for complaint

9.       The member chose to give evidence in this case and subject himself to cross examination, his status in these proceedings is therefore heightened from that of mere commentator to active participant. The commissioner may take the view that any member appearing in such a capacity must ensure they retain a sense of proportion and conduct themselves in a proper manner. It is worth noting that the party the member appeared for were unable so to do so at one point during proceedings, and Counsel for Mermaids was placed in the unenviable position of having to offer an apology for a video message released on social media by the CEO of Mermaids in which she made unwarranted and prejudicial statements about the Defendants. This video was re-tweeted by a third party, the “Good Law Project”. That context is significant as it suggests a consistent tone in respect of social media utterances by one party to these proceedings.

Specific complaint

10.   In respect of the first tweet above (paragraph 7 (i)), I complain that this tweet:

(a)    Is in general terms inconsistent with the member’s Parliamentary duties and his status as a witness. The member risks prejudicing proceedings by, in effect, offering a public running commentary on a live case.

(b)    The member descends into person abuse of senior King’s Counsel with his disrespectful and snide comment that she is “relatively competent”, this is unworthy of him or any member of the house. It amounts to mere abuse. I note no such equivalent childish comments by witnesses for LGB Alliance which the Commissioner may regard as telling. Denigrating officers of the court (such as King’s Counsel) can only undermine proceedings and suggest inequality of arms to the public. That is contrary to upholding the law and the regular process of the law.   

(c)     This personal abuse as to leading counsel’s abilities continues with the remark by the member stating he “found her nervous seeming and reliant on briefing notes”. Many women have remarked online that this comment appears to them to be a sexist because it seeks to impugn Counsel’s professionalism or adequacy for her role. It is in any event an unworthy comment of a member on live proceedings, and it appears designed to denigrate a leading KC. The Commissioner may take the view that attempting to undermine counsel in this fashion is inconsistent with the member’s duty to uphold the law.

(d)    The member’s comment to the effect that leading counsel “was clearly unable to defend the abusive behaviour of her clients” vilifies the defendants and misstates the issue in the tribunal (which centres around a legal argument as to whether charitable objects are sufficiently clear in chancery law). The member is thus mischaracterising proceedings and inflaming an already tense debate with this comment. The Commissioner may take the view that Members of the House should be astute to comment accurately and according to the actual issues in a case and that to do otherwise is inconsistent with upholding the law and regular process of law.   

(e)    The member refers to the registered charity “The LGB Alliance” as the “so-called” LGB Alliance. His purpose can only reasonably be inferred to be that of vilifying the charity by suggesting duplicity or doubt as to their advocacy for lesbians, gay men and bisexuals. No evidence is offered for this claim which the Commissioner may consider a wild one given three lesbians appeared as witnesses for this party. The member may way fervently disagree with the philosophical position of this charity, but he is not entitled to engage in baseless abuse in this fashion, upholding the law requires that the member attempt civil dialogue even with those he disagrees with if he is able to.

(f)      Taken together, these comments amount to unwarranted and childish abuse of a senior KC and a registered charity. They are quite unworthy of the member, and they are inconsistent with upholding the law in respect of defendants receiving fair hearings and their counsel not being publicly undermined by mere abuse. The Commissioner may take the view that the court is the proper place for arguments about this case, not the member’s social media feed.

11.   In respect of the second tweet above (paragraph 7 (ii)), I complain that:

(a)    The member again descends into unwarranted smears by describing the defendant as “sinister” (and it is noteworthy that this claim was not advanced by the party he chose to give evidence for). This is presumably intended to vilify the defendant and it amounts to misrepresenting the applicant’s case as presented to the tribunal which made no such complaint. The commissioner may consider statement as having a bearing on the question of whether the member retains a sense of proportion in respect of these proceedings.

(b)    It is not accurate to say counsel “applied to have my testimony disregarded”. No such application was made, nor is such known to law. This is a misrepresentation of leading counsel’s (perfectly proper) comment, and the rule of law is hardly furthered or served by members misleading the public in this fashion. Counsel simply made a comment on the evidence as she was quite entitled to do, just as Leading Counsel for Mermaids did without any comment from the LGB Alliance. Both parties have fairly had their say in the tribunal as is in keeping with the law. Misrepresenting the process on social media is therefore difficult to reconciled with the member’s duty to uphold the law and process thereof.    

(c)     The member then relates anonymous hearsay saying “Experienced legal counsel tell me that this is telling and shows they were rattled by it. Good”. This, again, amounts to live commentary on an ongoing case and is quite irregular for any witness, let alone a member of the house. The Commissioner may also take the view that comments of this nature can only provoke responses which would have the effect of a member (intentionally or not) encouraging third parties to discuss a live case.

(d)    The member finishes with a hashtag reading “#tranrightsarehumanrights”. This is misleading because the tribunal was concerned with the law of chancery and sufficiency of charitable objects. It is inflammatory and inaccurate for the member here to imply that his quite improper comments on a live case in some way cast him as a standard bearer for a human rights cause. They do not. They simply suggest this witness may not understand (or chooses to disregard) his duties to the tribunal to ensure it is not prejudiced by unwise public statements. Inflaming proceedings in this fashion is inconsistent with a duty to uphold the law and the regular process thereof.

Conclusion

12.   I ask that the Commissioner consider this serious matter with some urgency because proceedings in the case are ongoing and very likely subject to an appeal by the unsuccessful party. The member’s comments go far beyond what is reasonable in this case and amount to him providing statements which might perhaps aptly be described as vitriolic and abusive. They also amount to misinformation to the public regarding a live matter and are likely to simply provoke further discussion of a live case. That cannot be in keeping with the duties of members and the Commissioner will be aware of previous cases where members have unwisely commented on ongoing cases.  

13.   It may well be the tribunal Judges deal with this matter in due course, but it cannot be right in the meantime for Parliamentarians to descend into personal abuse of leading Counsel in this fashion. On reflection, the member may consider the proper course is to delete the tweets in question and offer an unqualified apology to Ms. Monaghan King’s Counsel. No matter how strongly the member holds views on this matter, his communications are public, and he was a witness to proceedings. Upholding the law requires that the process of the law is respected by members, even in situations where some may struggle to keep their temper.  

14.   For those reasons, I complain as above.  

Your Faithfully

Dennis Noel Kavanagh

[1] [2016] EWCA Crim 12, [2016] 2 Cr App R 13

[2] [2019] EWHC 1791 (QB)

[3] [1936] 2 All ER 1514

[4] [1989] QB 110