The row over the Privileges Committee’s investigation into Boris Johnson is, in almost every respect, a political one.
The investigating body is a political one; the sanctions it can recommend are, whatever their severity, likewise political; and it is for the House of Commons, the ultimate political body, to decide whether to impose them on the former Prime Minister or not.
It is this last which will make the question into a problem for Liz Truss. As the proud inheritrix of a parliamentary majority, she could whip Conservative MPs against any recommended sanction. Or she could call the Committee off. Johnson’s campaign in the media (to whom Lord Pannick’s legal advice was given) clearly has that as its object.
The concerns raised in that opinion can be broadly divided into two groups: those that pertain specifically to the case at hand and the investigatee’s chances of a fair hearing (and what actually constitutes ‘fair’); and those about the potential broader effects of the inquiry on the future conduct of Parliament.
As to the former, readers may find different parts of the case more or less persuasive. Other writers have gone into the thickets of the argument.
On the key question of whether or not intent is necessary for a finding of contempt, per my previous article, it is scarcely decisive; Erskine May is quoted at length, but no statement that contempt must compass intent is found. Precedents are cited, but Johnson’s critics argue that their relevance is circumscribed by the subsequent evolution of Commons procedures:
the motion that charged the Committee makes no mention of ‘intentionally misleading’. Nor does he acknowledge that many aspect of Standards processes have changed over the years, including the introduction of the right of ministers to correct the record through a Written
— Chris Bryant (@RhonddaBryant) September 2, 2022
Bryant, of course, recused himself from the Committee to avoid allegations of bias. But the point stands or falls on its own terms.
In my previous piece, I argued that the great backstop against a miscarriage of justice is precisely the political nature of proceedings:
“The point which some of Johnson’s defenders seem to have missed is that a finding of contempt does not, in itself, carry some terrible penalty. It is difficult to see how MPs could conclude that the Prime Minister unknowingly mislead the Commons and still recommend a harsh punishment – and more difficult yet to see MPs ratifying it.”
His allies take a different view. To them, the political pressure will push MPs to vote for any sanction recommended by the Committee, precisely to avoid another rash of Owen Paterson-style headlines. They thus want Liz Truss to halt the inquiry, which will result in identical headlines but spare their man.
That dilemma, rather than any volume of detailed technical argument, is the core of the issue. Does the Prime Minister risk an intervention which the Opposition and much of the press would portray as a bid to get her predecessor off the hook? Does she think that an optical battle she can win, or the best use of her political capital? That decision is up to Truss.
But the Government could more easily address the second clutch of Pannick’s arguments, namely the suggestion that the Privileges Committee’s inquiry will have a “chilling effect” on contributions to Parliament by ministers and even ordinary MPs.
Whether or not this is a real danger is debatable. Neither ministers nor MPs can be dragged in front of the Committee save by order of the House of Commons, and it would be a strange government which deployed its majority to facilitate a witch hunt against its own front bench. Nonetheless, MPs need only perceive the danger for it to affect how they conduct themselves in the chamber.
Truss could, therefore, initiate whatever processes are necessary to formulate a clear and up-to-date definition of contempt of parliament. It could quite plausibly be drawn to require intent; in the age of Twitter and rolling news, procedural arcana such as “contempt doesn’t actually mean he did anything very wrong” are doomed to be lost in translation.
So long as this applied only to future cases, it’s difficult to see where the danger would lie.