A man who is his own lawyer...
We are now well used to watching courtroom advocacy of the highest order on television. Lord Pannick KC drew a large audience when he successfully represented Gina Miller in her two Brexit-related challenges — the article 50 hearing in 2016 and the prorogation case in 2019. In Miller 2, the defendant was Boris Johnson. But now, the former prime minister is Pannick’s client. And the KC’s advocacy will be of a very different kind when Johnson appears before the Commons privileges committee this afternoon.
That’s because the committee will not allow Pannick to address a word to it. He’ll be seated near Johnson and can pass him notes or whisper in his ear. But Johnson might regard that as a sign of weakness. He won’t want to be seen to be taking advice from his lawyer.
Hence the importance of Johnson’s long-awaited 52-page written submissions, delivered to the committee on Monday and published yesterday. It’s clear from the document’s layout and format that Johnson’s defence was prepared with Pannick’s assistance.
The committee
Yesterday, the privileges committee explained why Johnson’s evidence was not released on Monday afternoon as he had originally expected. What lawyers like to call a “core bundle” of documents was published at 9am today.
There’s also an excellent explainer from the Institute for Government.
The privileges committee is due to begin hearing oral evidence from Johnson at 2pm. We don’t know when the session will end. You can watch the proceedings on the Parliament TV website — unless it’s overwhelmed by demand. I’m sure the rolling news channels will cover it too.
The charges
A summary of issues to be raised with Johnson was published by the privileges committee on 3 March. It includes several photographs:
The committee also outlines a number of individual incidents:
On 20 May 2020, when the rules and guidance in force for the prevention of the spread of Covid included restrictions on gatherings of more than two people and maintaining social distancing of two metres in the workplace wherever possible, Johnson attended a gathering in the garden of No 10 which was attended by 30 to 40 people. The invitation list was extensive and the planning and communications are evidence that the purpose of the gathering was social. Alcohol was provided by staff. Fixed penalty notices were issued to a number of those who attended.
On 19 June 2020, when the rules and guidance in force for the prevention of the spread of Covid included restrictions on indoor gatherings of two or more people and maintaining social distancing in the workplace of two metres wherever possible, Johnson attended a gathering in the cabinet room to celebrate his birthday. A cake and alcohol were provided. Attenders included individuals who were not work colleagues of Johnson. Some attenders, including Johnson, received fixed penalty notices in relation to this event. The event was neither “reasonably necessary for work purposes” nor socially distanced. Photographs were taken of the event which the committee has received.
On 13 November 2020, when the rules and guidance in force for the prevention of the spread of Covid included restrictions on indoor gatherings of two or more people and maintaining social distancing of two metres or one metre with risk mitigations in the workplace wherever possible, Johnson attended an impromptu leaving gathering in the vestibule of the press office. Johnson joined the gathering and made a speech. Photographs were taken of the event which the committee has received. The photographs show that there was no social distancing.
On 27 November 2020, when the rules and guidance in force for the prevention of the spread of Covid included restrictions on indoor gatherings of two or more people and maintaining social distancing of two metres or one metre with risk mitigations in the workplace wherever possible, Johnson attended and gave a speech at a gathering in the vestibule of the No 10 press office to thank a member of staff who was leaving. We received evidence that there was no social distancing and people were standing four to five deep. We received evidence that Johnson said that it was “probably the most unsocially distanced gathering in the UK right now”.
On 18 December 2020, when the rules and guidance in force for the prevention of the spread of Covid included restrictions on indoor gatherings of two or more people and maintaining social distancing of two metres or one metre with risk mitigations in the workplace wherever possible, Johnson was present in No 10. The press office held a “cheese and wine Friday” which was neither socially distanced nor reasonably necessary for work purposes. It was billed as a Christmas gathering and between 20 and 45 people attended. Fixed penalty notices were issued to some of those who attended.
On 14 January 2021, when the rules and guidance in force for the prevention of the spread of Covid included restrictions on indoor gatherings of two or more people and maintaining social distancing of two metres or one metre with risk mitigations in the workplace wherever possible, Johnson attended and gave a speech at a leaving gathering for two officials involving 15–20 people. The photographs show Johnson in attendance. Fixed penalty notices were issued to staff for this event.
The committee then summarises and considers what Johnson told the Commons:
On 1 December 2021, Mr Johnson told the House: “All guidance was followed completely in No. 10”. We will consider why Johnson told the House that no guidance had been broken in No 10 when he knew what the guidance was and was in attendance at gatherings where the guidance was breached; and why he failed to tell the House about the gatherings at which he had been present.
On 8 December 2021, Johnson told the House: “The guidance was followed and the rules were followed at all times”. We will consider why Johnson told the House that no rules or guidance had been broken in No 10 when he knew what the rules and guidance were and was in attendance at gatherings where the rules and guidance were breached; and why he failed to tell the House about the gatherings at which he had been present.
On 8 December 2021, Johnson told the House “I have been repeatedly assured since these allegations emerged that there was no party and that no Covid rules were broken”; and that “I have been repeatedly assured that the rules were not broken”. We will examine the basis of his assertion that he had received “repeated assurances” that all rules had been complied with to discover why he sought to rely on purported assurances from others when he was there at gatherings in question.
On 15 December 2021, Johnson told the House: “A report is being delivered to me by the cabinet secretary into exactly what went on”. On 12 January 2022, Johnson said to the House in relation to the gathering of 20 May 2020: “All I ask is that Sue Gray be allowed to complete her inquiry into that day and several others, so that the full facts can be established”; he also repeatedly urged members to “wait” for the inquiry to be concluded in response to members’ questions about what had happened and the implications for his position as prime minister. He further urged members to wait for the inquiry’s conclusion in similar terms on 19 January. He did not reveal to the House what he knew when he answered direct questions about his knowledge, instead saying that he would have to wait for the outcome of Sue Gray’s investigation.
Next, the committee deals with the question of whether the Commons was misled:
It may have been misled when Johnson said on 8 December 2021 that no rules or guidance had been broken in No 10. Gray and the Metropolitan Police have already come to the conclusion that was not correct, including in relation to specific gatherings for which Mr Johnson asserted this was the case.
It may have been misled when Johnson failed to tell the House about his own knowledge of the gatherings where the rules or guidance had been broken. That is because there is evidence that he attended them.
It may have been misled when Johnson said on 8 December 2021 that he relied upon repeated assurances that the rules had not been broken.
It may have been misled when Johnson gave the impression that there needed to be an investigation by Gray to establish whether the rules and guidance had been broken before he could answer questions to the House. While repeatedly making that statement to the House he appears to have had personal knowledge that he did not reveal.
Finally there is the question of whether Johnson corrected any inadvertent error at the earliest opportunity, to quote the ministerial code. That code is a matter for the prime minister. But as Alexander Horne points out this morning, parliament can hold Johnson to account for not correcting inadvertent errors under a Commons resolution on ministerial accountability approved in 1997.
The committee makes three points on this:
On 19 April 2022 Johnson acknowledged to the House that rules had not been followed at his birthday gathering on 19 June 2020 for which he and others received fixed penalty notices.
On 25 May 2022 he made a statement after Gray’s report had been published. That statement maintained that the gatherings which Johnson attended had not been found to be outside of the rules at the time he attended them. His purported correction did not set out his own knowledge of the gatherings.
The evidence strongly suggests that breaches of guidance would have been obvious to Johnson at the time he was at the gatherings. There is evidence that those who were advising Johnson about what to say to the press and in the House were themselves struggling to contend that some gatherings were within the rules.
But the key paragraph is this:
If a statement was misleading, we will consider whether that was inadvertent, reckless or intentional. If we conclude it was in any way reckless or intentional we will consider what sanction to recommend to the House. It will be for the House to decide whether to accept or reject our conclusions and recommendations. There has been some misinformed speculation in the media that the committee will not be concerned with issues of intention or recklessness; that is incorrect.
The defence
Johnson responded this week to the individual allegations against him. There is a handy summary in The Times.
Crucially, though he accepts that the Commons was misled:
But when the statements were made, they were made in good faith and on the basis of what I honestly knew and believed at the time. I did not intentionally or recklessly mislead the House on 1 December 2021, 8 December 2021, or on any other date. I would never have dreamed of doing so.
His defence is that he put the record straight as soon as possible:
As soon as the Sue Gray investigation and the Metropolitan Police investigation had been concluded, I corrected the record. I believed — and I still believe — that this was the earliest opportunity at which I could make the necessary correction.
It was not fair or appropriate to give a half-baked account, before the facts had been fully and properly established, including into many events about which I had no personal knowledge.
I explained to the House that that is what I intended to do, and that is what I did on 25 May 2022: six days after the Police investigation had concluded, and the same day that the final Sue Gray report was published.
What, though, of the committee’s assertion that breaches of guidance would have been obvious to him when he was at the gatherings? The best he can come up with is to say that if it was obvious to him then it would have been equally obvious to dozens of others who also attended.
Johnson then makes a somewhat pedantic point. The committee had been asked by the Commons to investigate assertions he had made “about the legality of activities in 10 Downing Street and the Cabinet Office”. But breach of government guidance was not illegal.
Finally, he makes a point of principle:
The [committee] report [published on 3 March] has… identified for the first time the entirely novel concept of “recklessly” misleading parliament. It appears now to be alleged — again for the first time — that I in some way acted recklessly by relying on the advice of officials when answering questions in parliament. That allegation is absurd for reasons that I will explain. But it also lacks any principled foundation.
As explained in the joint opinion of Lord Pannick KC and Jason Pobjoy published on 2 September 2022, in order to prove contempt it is necessary for the committee to establish that I intended to mislead the House, which I clearly did not. Insofar as I am aware, there is no precedent of a contempt by misleading Parliament being found based on the concept of “recklessness”.
The introduction of such a concept would be a significant departure from precedent, and would have serious implications for the future of debate in the House, and for the ability of ministers to rely on the advice of their officials when answering questions in parliament.
The reaction
It’s fair to say that Johnson’s argument has failed to impress. He and his lawyers are not the only people to say that a finding of contempt must depend on an intention to mislead — or, at least, an intention to leave MPs in the dark for longer than necessary. But that approach was rejected by the committee last September. And Pannick’s rejoinder, submitted last October but not published until earlier this month, does not seem to have made much impact on Sir Ernest Ryder, the former appeal judge who is advising the committee on the law.
Comment
Johnson’s assertion that the committee needs to prove that he intended to mislead the Commons is just that: merely an assertion. There is no doubt that the committee can make its own rules — subject, as it accepts, to approval by the Commons. So this boils down to a question of fairness. The committee has given Johnson plenty of notice of the approach it intends to take. It has set out the charges and the interferences it may draw from the evidence as it currently stands.
Johnson, by contrast, was invited to respond as long ago as last July. Typically, he filed his copy on Monday and it was not subbed for publication until yesterday.
Gray’s final report was delayed by the police investigation. But Johnson’s claim that he had to wait until her findings were published rings hollow. He admits as much when he claims that any earlier correction would have been “half-baked”. Better a half-baked correction than no cake at all.
Whether Johnson intended to mislead the Commons in December 2021 may be difficult to prove. But there seems little doubt he intended to leave MPs in the dark for the best part of six months.
Johnson will have to answer questions this afternoon without the benefit of instant legal advice. Isn’t there a saying about a man who is his own lawyer? Something about the nature of his client?
Many thanks, Joshua, for this clear and concise analysis. Cards on the table: I would see it as a case of poetic justice should Johnson slip-slide into pugnacious and -let us say- obfuscatory- character ,so largely neutralising the formidable legal contingent that has been at his disposal throughout the evidence session ,albeit as fettered from 2.00 p.m. until conclusion. In particular Lord Pannick will be unable to address the Committee, still less to respond to questions on his client’s behalf.
I wonder if the Boris might try to seize his opportunity en route to and from the division lobby over the Windsor protocol vote for a whirlwind consultation with Lord Pannick et al ? Should that be permitted? Were his evidence being given in a criminal court then it would be out of the question. I know this is a markedly different - though scarcely lesser- tribunal but all the same? Mind you, should he TRY it might in fact disadvantage him in the eyes of the PUBLIC and be viewed by them as a sign of weakness?
There is nothing as I maintain unfair about Lord Pannick’s “ non-speaking role since it mirrors- does it not?- the modus operandi in the US’s committee structures.
Fairness to Johnson - and civility- must be extended and I have little doubt will be. The Committee , rightly, has been acting upon (also) formidable legal advice and again thank you, Joshua, for identifying its source.
There is often talk of vitally important parliamentary processes and this can be overdone but THIS TIME…….?