Boris at bay: fighting for his future
Today's meeting of the Committee of Privileges is the former prime minister's last big chance to salvage his reputation and career: what should we look out for?
Today is the day. Boris Johnson, Member for Uxbridge and South Ruislip, sometime prime minister of the United Kingdom, will give evidence to the Committee of Privileges on whether he misled the House over the legality of activities in Downing Street and the Cabinet Office under Covid-19 lockdown regulations. In particular, the committee is examining the truthfulness of four assertions made by Johnson in December 2021, and whether, of it finds that he did indeed mislead the House, that act of deceptions amounts to a contempt. The committee’s proposed conduct of the inquiry, published in July last year, made it clear that they would regard as a contempt “whether or not an action or omission obstructs or impedes or has a tendency to obstruct or impede the functioning of the House”.
The session will begin at 2.00 pm in Portcullis House, the modern office building opposite the Palace of Westminster, and may last for as long as five hours. Johnson will not be represented by counsel, and will, as at any meeting of a select committee, be required to answer for himself, though, again like any witness at a select committee, may be handed written advice by his legal team. His chief legal adviser is Lord Pannick KC, who was admitted to the Bar nearly 45 years ago and has represented clients as diverse as the late Queen Elizabeth II and Shamima Begum. Pannick is regarded as one of the English legal world’s superstars, a persuasive advocate who can dominate a courtroom and, according to the acid verdict of one colleague, “is not troubled by self-doubt”, but today he will be a bit player. His client must speak for himself.
(As taxpayers, we should all note that the noble Lord does not come cheap and his fees are rumoured to be in the area of £5,000 per hour. In September last year, almost as Johnson was filling the removal van at 10 Downing Street, Pannick and his team provided him with an opinion on the proposed conduct of the Privileges Committee. This was paid for by the Cabinet Office from public funds, at a cost of nearly £130,000. In the past I have defended the use of public money to support the former prime minister, and that must be on a point of principle, but I do admit there there comes a point beyond which he is taking the piss.)
The committee consists of seven members, with a government majority: four Conservatives, two Labour MPs and a Member from the SNP. Until June 2022, the chair of the committee was Sir Chris Bryant (Lab, Rhondda), but he recused himself after saying repeatedly in public that he believed Johnson had lied to the House, in his words, “deliberately, carelessly and recklessly”. The former deputy leader of the Labour Party, Harriet Harman KC (Lab, Camberwell and Peckham), who had been chair of the Joint Committee on Human Rights, succeeded Bryant at the head of the Privileges Committee and will preside over today’s session.
On Monday, Johnson submitted a hefty memorandum of evidence to the committee which was heavily trailed in the media over the weekend, his allies claiming that this “compelling dossier” would “vindicate” his position. It was published, after some tidying up, by the committee yesterday. A note here on how evidence to a select committee works, as there has been some confusion among commentators: when a witness submits evidence to a select committee inquiry, he or she does so on the basis that it will be examined and a decision taken by the committee or the chair on its behalf on whether to accept it, and, if accepted, whether to publish it and allow the submitter to publish it elsewhere. This is usually a formality, but the important points are these:
The evidence belongs to the committee, not the witness, as soon as it is submitted;
The committee can choose what to do with it, and
If the evidence is published, it then attracts parliamentary privilege, meaning that it cannot generally be cited in legal proceedings or used as the basis for accusations of libel or slander, as prescribed by Article IX of the Bill of Rights 1689.
Having set out these important contextual points, then, what should we expect from this parliamentary prizefight? Here are three issues which I think may be decisive.
If the session really does last five hours—not unheard of for a select committee, as my long-suffering bladder can attest—it will not only be the questions and answers which are under scrutiny, but the stamina and concentration of the witness. Sustained focus is not Johnson’s métier, as he prefers to rely on the initial impact of his often-freewheeling oratory. This served him well at Prime Minister’s Questions, as he could to an extent control the pace, and only the leader of the opposition and the SNP leader are allotted more than one question, so a distracting answer or fierce rebuttal can overshadow the precision of an inquiry’s thrust.
His appearances in front of the Liaison Committee (the body made up of all select committee chairs) were less satisfactory, as these required him to follow chains of logic and withstand sustained cross-examination for an hour and more, and he sometimes wilted, lost some of his sparkle or, worst of all, became impatient and annoyed. If this happens today, he may create openings for sharp-witted committee members, but they too will have stay alert in order to exploit them. Johnson, Eton and Balliol College, Oxford, is thought to be clever, and so he is, but his is a very English type of cleverness: lazy, over-reliant on a good memory and chiefly skilled at knitting together a plausible and grandiloquent argument from thin sources to satisfy the needs of the fleeting moment. It is exactly the sort of mind which can shine in debates at the Oxford Union and elsewhere; it is a riskier proposition in the House of Commons; and it is wholly unsuited to a stout defence in front of a select committee which has nowhere else to be that afternoon.
It is also worth noting that Johnson has a very peculiar attitude to the truth. It is, for him, purely a transactional matter: Sir Max Hastings, who was Johnson’s editor at The Daily Telegraph for five years (1989-94), described him as having “contempt” for the truth, as well as for “rules, precedent, order and stability”. He went so far as to say that the former prime minister “would not recognise truth, whether about his private or political life, if confronted by it in an identity parade”. Allied to this, and inextricably linked, is an indifference to his own untruths, because for him they are as unimportant as the truth itself. This is a danger for him in a long, grinding evidence session, every syllable of which is being watched and recorded. Hastings thought him a coward, saying “whatever he thinks most likely to please, heedless of the inevitability of its contradiction an hour later”. It is almost aphoristic that the secret to being a good liar is remembering your own lies: the chances of Johnson throwing out misinformation which is contradictory must be substantial if he does indeed decide to be less than forthcoming.
Misdirection and sleight of hand
We have already seen an outline of Johnson’s likely strategy in the evidence he submitted to the committee and the mood music which surrounded it. Johnson is acutely aware that he will be on display to several different audiences today: the members of the committee, certainly; other MPs, who would have to vote on any recommendation of a punishment from the Privileges Committee; and the wider public. While the committee will judge him largely on the content of his evidence as it relates to the questions they ask, the other two groups will at some level be swayed by a broader impression of the proceedings, and this gives Johnson an opportunity.
Expect Johnson to try to create as much doubt and controversy as possible, making the entire process of the inquiry into his conduct look dubious and partial. He and his legal team have already touched on some of these issues, but among his countermeasures may be: doubts about the impartiality of the committee (although it has a Conservative majority) and the previous statements of members about his guilt or innocence; the technical proprieties of the inquiry process, which were much criticised by Pannick and co. in the September 2022 memorandum and compared, disobligingly, to those expected in a court of law (which the committee is not, nor does it claim to be); the connection between the inquiry and his downfall as prime minister and leader of the Conservative Party, as some of his more irresponsible partisans have already tried to summon up visions of a plot against him or a witch-hunt; and perhaps more generally an implication that this has all been well ventilated, the pandemic is over, the focus of political life has moved on and it would be better to let sleeping dogs lie (or mislead).
“I didn’t mean it”: the question of intent
The main thrust of Johnson’s defence seems to be emerging as a denial that he deliberately misled the House, and an attempt to suggest that that is the charge which the committee must prove. But it is a falsehood: the committee need prove no such thing. When the House of Commons resolved to refer the matter of Johnson’s conduct to the Committee of Privileges on 21 April 2022, the terms of the resolution were quite clear. The House:
Notes that, given the issue of fixed penalty notices by the police in relation to events in 10 Downing Street and the Cabinet Office, assertions the Rt hon Member for Uxbridge and South Ruislip has made on the floor of the House about the legality of activities in 10 Downing Street and the Cabinet Office under Covid regulations… appear to amount to misleading the House.
There is not a whisper of intent or, as one barrack-room lawyer put it recently, “mens rea” in the resolution of the House, merely that Johnson seemed, prima facie, to have misled it. And indeed a memorandum to the Committee of Privileges from the Clerk of the Journals, Eve Samson, which is reproduced in their first report on the matter, is equally firm: “There is no reference to intent in the reference [to the committee]”. She goes on to reiterate that “Much of the commentary has focussed on whether Mr Johnson “deliberately” or “knowingly” misled the Committee. This wording is not in the motion.”
The bottom line here is that the committee does not need to show what Johnson meant to do, whether he committed an innocent misrepresentation of the facts or a deliberate malversation. The question is simply whether the House was misled. If the committee concludes that it was, it will then consider whether that amounts to a contempt.
Clearly, Johnson, perhaps on Pannick’s advice, seeks to pretend that the bar which the committee must clear is higher, and then hope that it fails to reach it. The members of the Privileges Committee will no doubt have been advised to remember that intent is not at issue here, and it is to be hoped that they remain clear on that point throughout the rigours of the evidence session.
This may all make it sound like the case against Johnson is a slam-dunk. To an extent, I think, it is: his responses to questions in the House seem to have been sufficiently muddled, contradictory or simply false that it is (in my view) almost certain that he did mislead the House. But two points have to be considered: the first is that this is a political, not a judicial, process, and it is perfectly open to the members of the committee to absolve Johnson, whatever the evidence might suggest; secondly, the committee’s involvement ends when it publishes its final report, including the recommendation of any sanction on Johnson. The imposition of that sanction would have to be approved by the House as a whole, which leaves it largely in the hands of the whips. In other words, there is still a long way to go.
In any event, it will be an historic afternoon: a former prime minister of the United Kingdom brought before the Committee of Privileges to defend himself against some of the gravest accusations a parliamentarian can face. It may be good box office, but one hopes, for the stability and steadiness of the constitution, that there is no sequel in the offing.
I watched parts of this (5 hours would be beyond me) and he did himself no favours at times. Even his brief, Mr.Pannick was rolling his eyes at some of Boris' usual mutterings. Time will tell but I think he's for the high jump.