Friday, 2 September 2022

Boris Johnson and the Committee of Privileges ~ a legal opinion

 

A joint legal opinion by Lord Pannick QC and Jason Pobjoy has been published by No 10 Downing Street

Legal Opinion by Lord Pannick QC relating to the Privileges Committee - GOV.UK (www.gov.uk)

The opinion begins by stating - "We are asked to advise the Prime Minister, the Rt Hon Boris Johnson MP, in relation to the inquiry being conducted by the House of Commons Committee of Privileges."

The actual "Instructions to Counsel" have not been released. Therefore, we do not know the precise questions asked by those instructing Pannick.

It is also unclear why the government's own legal service was not asked to provide an opinion rather than an opinion requested, at significant public expense, from barristers.

As noted in the previous post, Boris Johnson faces an investigation by the House of Commons Privileges Committee - The details of this may be seen at Committee of Privileges - Summary - Committees - UK Parliament

Events to date:

The referral to the Committee

arises from a Resolution of the House of Commons on 21 April 2022 and the committee is directed to consider whether Mr Johnson's conduct amounted to a contempt of the House - Referral of Prime Minister to Committee of Privileges - Hansard - UK Parliament

The Committee decided a Resolution on Procedure dated 19 July 2022 - Matter referred on 21 April 2022: proposed conduct of inquiry (parliament.uk)

On 23 July 2022 the Committee published a short Statement on Procedure where it stated that -

"The three questions the Committee will set out to answer in its inquiry are: (1) whether the House was misled; (2) if so, whether that was a contempt – that is to say an action or omission which may have obstructed or impeded the functioning of the House of Commons; and (3) if so, how serious was that contempt. The Committee has not yet assessed the evidence nor has it prejudged any of these questions. The issue of whether the House was deliberately misled may arise under steps (2) or (3) of the Committee’s investigation."

Six areas where it is argued that the Committee is adopting a fundamentally flawed approach:

The Joint Opinion - (which might be better described as advice to Boris Johnson) - sets out 6 areas where it is said that the Committee is proposing to adopt a "fundamentally flawed" approach -

(1) The Committee has failed to understand that to prove contempt against Mr Johnson, it is necessary to establish that he intended to mislead the House

The opinion argues that, in accordance with long standing practice, it is necessary to prove an INTENTION to mislead.

(2) The Committee has failed to recognise that for an allegation of contempt to be established, it would need to be persuaded that the allegation is made out to a high degree of probability - significantly more likely to be true than not to be true.

Note: This test is stronger than just a balance of probabilities test.

(3) The Committee is proposing to apply an unfair procedure in that it says it may well not tell Mr Johnson the identity of witnesses whose evidence may be relied on to establish a contempt of the House. 

Mr Johnson should seek from the Committee an assurance that if it receives evidence from any witness, Mr Johnson will be told their identity so that he has a proper opportunity to respond.

(4) The Committee has failed to recognise that a fair procedure requires that before Mr Johnson gives evidence, he should be told the detail of the case against him - charges and evidence - so he has a proper opportunity to respond. 

Mr Johnson should ask the Committee to confirm that it will ensure that Mr Johnson knows what is alleged against him, and the evidence upon which it is based, before he is required to give any written or oral evidence.

(5) The Committee has failed to recognise that a fair procedure requires that Mr Johnson should be able to be represented at a hearing before the Committee by his counsel.

Mr Johnson should ask the Committee to exercise its discretion to allow similar representation by counsel in the present matter to explain the points of principle taken by Mr Johnson.

(6) The Committee has failed to recognise that a fair procedure also requires that Mr Johnson should be able, through his counsel, to cross-examine any witness whose evidence is relied on to establish a contempt of the House. 

The Resolution on Procedure makes no provision for cross-examination. Mr Johnson should seek from the Committee an assurance that if it proposes to rely on the evidence of any witness to make findings against Mr Johnson, he will be given an opportunity, through his counsel, to cross-examine that witness on any material disputes of fact.

An omission:

The opinion does not address the question of whether a failure to promptly correct any misleading or inaccurate statement can, in itself, be a contempt.

Does the opinion stop the committee proceeding?

It does NOT have that effect and there is no need for it to do so. The opinion is concerned with matters of what should be proved before a finding of contempt can properly be made and also the required standard of proof. Points of procedural fairness are also raised. It is stated in the opinion that a court hearing a judicial review application would declare the approach taken by the Committee to be unlawful. 

Parliament:

The Bill of Rights Article 9 - "`freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament" - Parliamentary Privilege - First Report

It follows from this that Parliament is entirely free to control its own internal affairs. In doing so, it does not, as a matter of law, have to adopt any particular standards of process. It need not adopt standards applicable in courts of law deciding judicial review.

Nonetheless, as the opinion shows, Parliament has from time-to-time adopted accepted contemporary standards of fairness.

Several notable legal commentators have written extensively about the opinion. Links appear below. They are all of interest to those interested in constitutional affairs. The focus of the commentators has been on the fact that, due to parliamentary privilege, the committee is not legally bound to adopt any particular standards of fairness.

I have no idea whether the committee will adopt the processes set out in the Pannick opinion, but there may be a political risk arises if they choose not to do so.

If the committee finds Johnson in contempt there is the possibility that Johnson and his supporters - (and he still has them) - will claim that the whole process is unfair and, in effect, a kangaroo court. Such views (or narratives) are perhaps best avoided.

The House of Commons itself could vote to stop the investigation. Whether it will do so remains to be seen. That would be a matter of politics. The opinion does not require it.

Media and other comment:






Lord Lester of Herne Hill:

Note the procedural issues that were raised by Lord Pannick in the matter of Lord Lester of Herne Hill.

In that situation Lord Pannick also advocated a number of issues regarding fairness of the process -




26 September 2022:


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