Will Boris Johnson get a fair hearing?
Privileges committee will not let ex-PM publish his counsel’s legal advice
The committee of MPs investigating whether Boris Johnson misled the Commons over breaches of lockdown regulations has refused to allow the former prime minister to publish further advice given to him by his counsel, Lord Pannick KC. The advice appears to cast doubt on the procedures adopted by the Commons privileges committee.
Pannick’s initial advice was published by the government on 2 September. That advice was robustly refuted by the committee on 26 September. In its report, the committee also complained that it was “highly irregular” for the government to publish its evidence to a committee before the committee had considered it.
At the end of last month, the Mail on Sunday reported that Pannick had written a further opinion, rebutting the legal advice that had been given to the committee. What might the KC have said?
Johnson’s solicitor is Nick Vamos, head of business crime at the specialist criminal solicitors Peters & Peters. This week, I asked him if I could see Pannick’s rejoinder.
Vamos told me that the opinion had been sent to the privileges committee with a request that the committee should either publish it itself or consent to its publication by Johnson.
The solicitor continued:
This request was not granted so the second opinion has not yet been published, despite the committee publishing and relying publicly on all of its own legal opinions.
For this reason, Vamos could not comment on the accuracy or otherwise of the Mail on Sunday article.
Why is the committee so touchy?
Evidence published by a parliamentary committee is privileged. MPs and peers can say what they like without the risk of legal action. As a reporter, I enjoy qualified privilege: if I report the evidence fairly and accurately, I can’t be sued.
That’s a valuable protection. But it’s not needed for the expression of honest opinion. Indeed, that’s normally welcomed by the committee.
In May 2021, the privileges committee provisionally proposed that potential witnesses should face up to two years in prison — and an unlimited fine — if they refused to answer MPs’ questions. I thought that was a terrible idea and wrote a piece here arguing against it.
The committee then got in touch and invited me to submit formal written evidence, dealing with the specific questions it has asked. I did so. It published my comments, alongside responses from some highly distinguished commentators. It then invited me to give oral evidence.
The committee was not frightened by views that, on the whole, it did not share. On the contrary, it offered me a privileged public platform. We still disagreed: this summer, the committee rejected the main argument I had put in my evidence. But I and others had more success in persuading the MPs that their proposed two-year maximum prison sentence was excessive. No reforms have yet been introduced.
It’s true that my original comments had challenged provisional views in a consultation paper rather than a decision announced in a report to parliament. But what difference should that make? Unlike members of a jury, MPs are not going to be prejudiced by hearing what other people think. They might even be persuaded to change their minds.
What’s this dispute about?
The privileges committee has to consider whether Johnson’s conduct amounts to a contempt of the House of Commons. That conduct includes assertions to MPs by the then prime minister that Covid regulations were complied with by staff working in 10 Downing Street and the Cabinet Office.
We now know that the lockdown rules were broken. It follows that MPs were misled.
Does that mean Johnson is automatically in contempt? Or it necessary first to prove that he intended to mislead parliament? Perhaps some lesser mental element might be sufficient — recklessness, perhaps, or carelessness? And if no intention needs to be proved, what should happen if a minister discovers an error and quickly corrects it? Was the minister in contempt at the outset? Or is an honest mistake exempt?
These questions are fundamental to the committee’s inquiry. If there is no need to prove intent, then Johnson must be guilty of misleading MPs.
As you would expect, the committee considered this carefully. It took advice from a senior parliamentary official and from a retired lord justice of appeal.
Eve Samson, clerk of the journals at the House of Commons, told the committee:
In summary, the focus of the house’s contempt jurisdiction is on the effect of the action or omission in question — does it impede or obstruct the house’s functions, or does it have the tendency to do so, directly or indirectly.
It is not necessary that intention is involved. Although some degree of intent may be inherent in the public perception of “misleading”, that is not decisive and the references in Erskine May are descriptive. The committee will have to decide how far some intent or omission is implied in the plain language of the resolution of the house.
Sir Ernest Ryder, a former senior president of tribunals, advised the MPs:
I have had sight of the advice from the clerk of the journals on the approach to contempt that the committee might take. I agree with her description and her advice.
The committee will have to decide whether a contempt of the house includes any mental element or mens rea.My provisional view is that this is a strict liability issue and that a mental element is not required.
Given this advice, the committee’s conclusions in July came as no surprise:
We agree with the reasoning about the nature of a contempt in [Samson’s] paper, namely that the focus of the house’s jurisdiction is on whether or not an action or omission obstructs or impedes or has a tendency to obstruct or impede the functioning of the house, with the consequence that, looking at contempt in broad terms, intention is not necessary for a contempt to be committed.
That was not Pannick’s view. In the advice he gave Johnson in September, he and his junior said:
A contempt by misleading the house requires it to be established that Mr Johnson intended to mislead the house — that is, that he knew that what he told the house was incorrect…
In the opposition day debate in the House of Commons on 21 April 2022 referring this matter to the committee, members made repeated reference to the criterion of “deliberately” or “knowingly” misleading the house. There was no suggestion that the motion had been framed so as to disapply the long-standing principle that intent was required to establish a contempt by misleading the house…
It is therefore very clear that the committee was asked to investigate and report on whether the prime minister “deliberately” misled the house.
The committee was unpersuaded by Pannick’s advocacy. It issued a further report a week later in which it said bluntly that his opinion was “founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.
The committee could certainly consider intent, it acknowledged. But the general tone of its response was: it’s up to MPs to decide how to handle this.
That’s true, of course: the courts can’t intervene. So it’s commendable that the committee published a detailed response to Pannick. But why stop there?
As would be normal in court, Pannick has replied to the arguments against him. According to the Mail on Sunday, Pannick says the committee has not addressed the fact that “the House of Commons debate when this matter was referred to the committee proceeded on the basis that the alleged contempt requires an intention to mislead”.
I have not seen Pannick’s advice and I have not been able to find out whether that quotation is accurate. But the allegation is certainly true. In its seven paragraphs of rebuttal on this point, there is no mention of what procedure MPs might have had in mind when they referred Johnson to the privileges committee.
Of course, there is an answer to that point. What really matters is the terms of the resolution. But that’s silent on the issue of intent. And, as the clerk of the journals wrote, “context is important in privilege cases”.
I am not arguing that Pannick is right on this. He is, as any lawyer would, putting the arguments that can legitimately be made on behalf of his client. But what I am arguing is that people should be allowed to consider his arguments and decide for themselves whether the procedures adopted by the committee are fair.
Samson and Ryder may well be right in the advice they have given the committee. If that’s the case, their arguments will be strengthened by being tested against a different viewpoint.
Despite what the committee seems to think, this is not about party politics. It’s about processes and procedures. These arrangements need public support if the committee’s final report is to command confidence. What does it have to lose by being open with us?
Update 0820: Alex Horne, a former parliamentary lawyer, offers an interesting response:
Update 23 December: my story has been picked up by the Daily Mail.
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Mens rea refers to matters relating to the person’s thought process, usually their intent, that is, their state of mind as an act is committed (Ryder).