Parliament to Pannick: Jog On
Some time ago, in the pages of this newsletter, I talked about the legal opinion of Lord Pannick that was published on the government website. This opinion related to the work of the Privileges Committee and, in particular, their inquiry into the alleged contempt of Parliament by former prime minister, Boris Johnson.
I described the opinion as “bizarre” but now the Committee has itself responded to the points raised by Pannick. It is worth going through each of them in turn:
Contempt requires intent.
The committee responded to this point by noting that the definition is not so limited because, according to a previous Committee report,
“the actions which may obstruct a House or one of its committees in the performance of their functions are diverse in character. Each House has the exclusive right to judge whether conduct amounts to improper interference and hence contempt. The categories of conduct constituting contempt are not closed.”
Furthermore neither the Resolution of the House that sent the matter to the Committee nor Erskine May (the authoritative book of Parliamentary procedure) support the position asserted by Pannick.
Lord Pannick had also argued that the Committee’s interpretation of intent would have a chilling effect on ministers when they make statements in the House of Commons. Unsurprisingly the Committee treated that assertion as nonsense because ministers are always able to correct the record if they realise that they have perhaps inadvertently misled Parliament on a point.
Contempt must be proven to a high degree of probability.
The Committee noted that the correct standard is the ‘balance of probabilities’, common in civil law. To demonstrate this point, they noted recent comments by Sir Ernest Ryder who, in a Standards Committee Review, said,
“the standard of proof on an inquiry is the balance of probabilities; there is no higher standard but the more serious the allegation the more attention should be paid to the quality of the evidence that is needed to satisfy the standard.”
The Committee should tell Johnson the identity of the witnesses.
The response from the Committee on this point explained that in some cases there may be individuals who wish to remain anonymous when giving evidence and, in those circumstances, everything will be done to ensure that the procedure does remain fair. However, at the present time there are no witnesses who do actually wish to remain anonymous.
Johnson should be informed of the case against him.
The case against Johnson is outlined in the resolution of the House of Commons. Johnson will be allowed to consider the evidence against him, respond to witnesses, and comment on the draft of the final report. If anything, the Committee is going out of its way to keep the former PM in the loop.
Johnson should be able to be represented by legal counsel and to cross-examine witnesses.
Committees may only hear from counsel if authorised by the House of Commons and that is not the case here. The example cited by Pannick that disputes this notion actually relates to counsel appearing as witnesses in their own right, not representing a client. In a more recent example (that of Lord Lester in 2018) the House of Lords noted that members may receive legal advice but should ultimately represent themselves.
All of the above is not far off how I responded to the opinion of Lord Pannick in my original post. The Committee is far more polite about it than I am but it is clear that the opinion is bizarre. Pannick attempts to apply legal standards to Parliamentary procedure and so what gives the impression of a solid legal argument just comes across as confused instead. His Lordship is a well-respected legal mind and so it was sad to see his name put to such doggerel.
Aside from all this, the question remains as to how the legal opinion of Lord Pannick was funded. It appears that although this was advice for Boris Johnson in a personal capacity, it was the taxpayer who footed the bill. This has now been picked up by the Good Law Project and, on the surface, it seems like they have a good case.
Even in his life after residing in Number 10, Johnson just can’t seem to shake controversy.
This week the podcast makes a return! There were no cases before the Supreme Court so instead we examined a judgment from the European Court of Human Rights.
They were looking at an application by the parents of Madeleine McCann who argued that accusations made about them in a book an documentary breached their right to respect for private and family life under Article 8 of the European Convention on Human Rights.
Episode link: http://uklawweekly.com/application-no-57195-17/
Make a difference today,
Marcus