10 KEY POINTS that left an eminent QC fearing for democracy
1 THE Commons privileges committee has ‘failed to understand’ that in order to find Boris Johnson in contempt, it must establish that he intended to mislead the House of Commons rather than just inadvertently make a mistake in his comments on lockdown-breaking gatherings in Downing Street. According to the leading barrister’s new advice, parliamentary rulebook Erskine May and previous contempt cases repeatedly refer to a ‘deliberate intention to mislead’. In addition, the debate that led to the launching of the probe into Mr Johnson saw several MPs mention the importance of ‘knowingly’ making a misleading statement.
2 Its approach would have ‘very undesirable consequences’. Lord Pannick says that ministers inevitably make mistakes when addressing MPs because they must respond quickly and do not always have prepared scripts. If they were all to face the prospect of formal investigation for making an honest error, it would have a ‘chilling effect’ on their statements. He writes: ‘Ministers would be less willing to try to be helpful in answering comments and questions during debate if they know that inadvertent mistakes which mislead the House amount to a contempt.’
3 The standard of proof is too low. In previous similar investigations, MPs have had to prove that allegations were ‘significantly more likely to be true than not to be true’. But in the current inquiry into Mr Johnson, the privileges committee has said only that it would decide ‘whether the allegations are proved on the balance of probabilities’. Lord Pannick, pictured right, says: ‘No reason has been given for according Mr Johnson a lesser degree of protection as to standard of proof than in those other cases.’
4 Witnesses will be allowed to give evidence anonymously. The committee has said it ‘may take steps to conceal the identity of a witness’ but Lord Pannick says it is only fair that the PM knows whose testimony could condemn him. The QC notes: ‘It is only if he knows their identity that Mr Johnson can respond to such evidence by drawing attention to material that might undermine its credibility such as an animus or a grudge or other rebuttal evidence.’
5 The specific allegations he faces have not been provided to Mr Johnson. Lord Pannick says it would be unfair not to tell him what evidence is being used against him ‘because of the factual complexity of the (unclear) allegations and the risk of this becoming an unfair memory test’. ‘The days are long gone in which criminal or civil procedure operates on the basis of trying to catch out a witness,’ he writes.
6 Mr Johnson is not allowed to be represented by a barrister. Although the committee’s procedure states that the PM can take advice from a lawyer during evidence sessions, he ‘must answer in person’. But Lord Pannick says: ‘It is unfair to prevent a person who faces serious charges which ( if proved) may lead to sanctions to be denied the right to have a lawyer speak on their behalf at a hearing to make any points of principle.’ He pointed out that eminent QCs were allowed to represent the sons of Robert Maxwell when they had to give evidence to a select committee about the Mirror pension fund.
7 Witnesses cannot be cross-examined. The rules of the committee make no reference to anyone giving evidence being grilled by a lawyer, as is standard in court cases. Lord Pannick writes: ‘A refusal to allow for such a process (of course, controlled to ensure it is conducted efficiently and courteously) has been regularly recognised by the courts as making unfair a process leading to the imposition of sanctions on a person.’
8 The committee risks looking biased. ‘The committee is composed of MPs some of whom are political opponents of the Prime Minister, and many of whom have made personal criticisms of his conduct,’ Lord Pannick says. As a result, it is especially important that it ensures its procedures are fair.
9 It would be unlawful if it were being run by any other public body. Decisions by government departments, councils and quangos can all be overturned in the courts under judicial review. But parliamentary privilege means that the committee cannot be challenged legally. ‘But for parliamentary privilege, a court hearing a judicial review brought by Mr Johnson would in our view declare the approach taken by the committee to be unlawful,’ Lord Pannick claims.
10 Lord Pannick concludes: ‘We advise Mr Johnson that the committee is proposing to proceed by reference to substantive errors as to the ingredients of contempt and the standard of proof required, and is proposing to adopt an unfair procedure.’