Last month, a banner billowed out across a tier of Manchester City’s Etihad Stadium, calling for ‘Pannick on the streets of London’. An unlikely mascot for the club, the fans were celebrating the board’s decision to hire David Pannick KC to defend Manchester City against the litany of charges laid against it by the Football Association. From the fans’ perspective, if Pannick couldn’t get Manchester City out of the legal hole they found themselves in, no one could.
Boris Johnson doubtless had a similar thought when he saw the charges levied against him by the House of Commons’ privileges committee. As prime minister, Johnson will have been used to seeing Pannick lining up for the other side. Perhaps most resonant in his memory is when he tried to prorogue Parliament in 2019, and when the Supreme Court lined up behind Pannick’s argument for its illegality. The thought of Pannick donning his wig and gown (at least metaphorically) as his defender, rather than as his accuser, was doubtless a reassuring one.
The primary accusation against Johnson is that he deliberately misled Parliament in the aftermath of the pandemic. He told the House of Commons that he was unaware of any breaches of the Covid regulations before the partygate scandal erupted, with stories of suitcases of wine being lugged down Whitehall to Downing Street, cakes and birthdays, and of amorous trysts in the Downing Street gardens. After he – and his then chancellor, Rishi Sunak – were fined by the Metropolitan Police, and only partially exonerated by the Sue Gray Report, it was little surprise to see the Privileges Committee was less than persuaded by Johnson’s claims to be unaware of “any breaches of [covid] guidance.”
Under ministerial rules, there is little sanction for unintentionally misleading Parliament (provided the record is quickly corrected). Accidents do happen. But it is another thing entirely to deliberately take Parliament down the rabbit hole. The Ministerial Code emphasises the “paramount importance” of giving truthful information to Parliament, and requires ministers to correct any errors “at the earliest opportunity.” In this case, there was little question of the code being used to discipline Johnson, with its ultimate arbiter being the prime minister. Instead, the House of Commons passed a substantive motion accusing Johnson of contempt for misleading Parliament, and giving jurisdiction to the Privileges Committee to conduct an investigation.
In recent years, we have seen that politics and law can make uneasy bedfellows. If the government and legislature is staffed with people who respect the law and the norms which are supposed to bind them, it is not difficult for them to lie side by side with the courts. But the moment that a populist or an authoritarian, with reckless – if not intentional – disregard for the law and the norms enters office, this relationship becomes toxic. What is most problematic is the question of where the difficulties in the relationship are to be resolved. Any resolution in the legal sphere brings with it the risk of politicising the courts, while a resolution in the political risks judicialising the legislature. Neither is necessarily desirable.
Choosing to resolve the question of Johnson in Parliament is the obvious, and probably most sensible, solution. But the necessary consequence of this is accusations of impartiality. Not only is the Committee divided by political tribe (although its reports and decisions to date have been unanimous), but it is chaired by a prominent opponent of Johnson in Harriet Harman. A prominent member of the Labour Party, she was a vociferous critic of Johnson’s premiership, and has already publicly condemned his statement to Parliament on Partygate. Chris Bryant, another Labour MP, was the previous chair, and he resigned because of tweets he had written (much like Harman) that would call his independence into doubt.
In an alternative world, there would be an impartial arbiter, or at least someone who gave off a greater appearance of impartiality than Harman. But this assumption disregards the fact that whoever chaired the meeting, and whoever was on the committee would face accusations of bias by Johnson. His premiership was so divisive that if you were not for him, you were against him. In claiming that the tribunal is prejudiced and so unlawful, Johnson is, as ever, trying to have his cake and eat it. The question of his misleading Parliament could not be raised in the courts because it was a political matter, concerning statements made in the House of Commons. The argument was that his breaches of the ministerial code were for Parliament to enforce, not the courts, nor any other arbiter.
As Lindsay Hoyle, the Speaker of the House, said when asked to adjudicate on the question of whether a minister had misled the House, he could not because ‘it was a matter of political debate.’ Now that the question is before Parliament, an institution that is by necessity politically partial, the claim goes up that the committee is politically compromised. There is no way to win.
Johnson’s other defences may be less contradictory, but are no more effective. He is also claiming that the investigation is unlawful because it will make its decision on the civil standard of the balance of probabilities, rather than the higher criminal standard of beyond reasonable doubt. With the proceedings taking place in Parliament, and without any threat of criminal sanction, this looks like a Hail Mary, not a defence. As Alexander Horne has pointed out, even Lord Lester, who was accused of sexual assault and investigated by the Privileges Committee, accepted that it was the civil, not criminal, standard that should apply.
Beyond this, Johnson has claimed that he had a text message telling him the gatherings were lawful from a media adviser, which is not so much a Hail Mary as a damp squib, and that he was operating on a “general assumption” the gatherings were lawful and compliant with the guidelines. With Johnson having attended some of the gatherings in person, and having been updating the nation personally on the relevant laws and guidance on a frequent basis, this is nothing more than a defence of idiocy. He cannot claim to be ignorant of the rules, nor of the existence of the gatherings. His defence is simply claiming to have been too stupid to have understood that the gatherings he attended violated the rules he told the nation about.
Some will obviously be taken in by Johnson’s claim of political bias and of witch hunts. But his defence is not a legal one, even if one of the country’s most eminent lawyers has helped draft it. It is pure politics, published in the hope of winning round the country at large, not the committee hearing his case. Here, it may be successful. If enough attention is paid to Johnson’s claims of iniquity and prejudice, the voters may be just distracted enough from the cornucopia of evidence against him – evidence that extends all the way to failing to correct the record. Perhaps he hopes that if enough mud is thrown, the Privileges Committee will recoil from its ultimate sanction of suspension, and just offer a slap on the wrist; or if it does vote to suspend him, his constituents will be persuaded to give him one more chance.
The Privileges Committee’s hearing is no witch trial, although if Johnson had his way, it would be the inversion of one. Women accused of witchcraft were damned if they were guilty, and damned if they were innocent. Johnson would have it the other way round – absolved if he is guilty, and absolved if he is not. Who would have expected anything else? Johnson’s political career rose on the assumption that he could have his cake and eat it. Hopefully it ends on the same note.