The Problem With Pannick
We are beginning to get an insight into the life after Number 10 for outgoing prime minister, Boris Johnson. As a backbencher it appears he will be combative and litigious in defence of his record and allegations that he misled Parliament.
The first major piece of evidence in this regard is the legal opinion written by Lord Pannick and published this afternoon. Pannick is highly regarded across the legal world as one of the top legal minds this country has to offer but his opinion in this matter is bordering on the bizarre.
The first interesting thing to note is that this was published by the Office of the Prime Minister but appears to have been commissioned by Boris Johnson as an individual. This is to presumably give the opinion an official hue that it neither has nor merits.
Beyond this there are six key points that Pannick mentions and each one deserves its own consideration:
Pannick argues that it is up to the committee to show that Johnson intentionally misled the House. However that is only based on past precedent and ignores the fact that this sort of language was not used in the motion that brought the prime minister's actions to the attention of the committee.
There is a suggestion that contempt must be proven on the balance of probabilities. To a legal mind this is familiar language but here is a good opportunity to remember that these are not court proceedings that we are dealing with. Instead this is a parliamentary process and is inherently political. This is not to say that this is a kangaroo court but rather the process is one that is designed by Parliament to be as fair as possible to a sitting politician while also ensuring that it has the power to get to the truth.
Pannick also suggests that the procedure is unfair because Johnson does not know who the witnesses are who might testify against him. Again, this might be devastating in a court case but there is no reason for the committee to abide by that standard if the procedure is fair.
In a similar vein, it is also argued that Johnson should be made aware of the case against him. This ignores the fact that Johnson is fully aware of the allegations against him and has plenty of time to prepare his own argument. At this stage I think it is worth noting what Pannick is trying to do here. By stating that the committee procedure does not adhere to normal legal standards, he is stating that it is inherently unfair. This is plainly not true. This is a parliamentary procedure based on rules agreed on by all members with an attempt to ensure that it is as fair as possible. As Professor Mark Elliot quite rightly noted: “The fact that the Committee's approach may not comply with standards that are inapplicable to it is neither here nor there: like criticising rugby players for not playing by the rules of football.”
It is argued that Johnson should be represented by counsel but this would undermine the process and set a disturbing precedent. Mr Johnson will be allowed to have advisers present but will ultimately have to speak for himself. This does not seem like an abuse of process given the nature of the allegations.
Finally it is argued that Johnson should be allowed to cross-examine witnesses but this is not a court and it is hard to imagine that this would be helpful for the committee members. They will have a chance to question witnesses themselves and wil undoubtedly do so in a rigorous fashion.
One of the features of the Johnson premiership was a diminishing of the separation of powers whether that was by seeking to reduce the effect of judicial review or concentrating powers in Downing Street instead of Parliament.
Now that he is leaving office Johnson is learning how effective the separation of powers can be when it comes to holding people like him to account and it could well be Parliament that has the last laugh.