27th September 2022
You will recall the “absolutely devastating” legal opinion provided for the then prime minister Boris Johnson.
This was in respect of the work of inquiry of the House of Commons privileges committee into whether Johnson had committed a contempt of parliament in respect of his seemingly misleading statements on the floor of the house.
On 1st September 2022, it was reported on a newspaper website:
“An insider said of the QC’s legal advice: ‘It is absolutely devastating.’”
And on the front page of that newspaper’s print edition dated 2 September 2022 we were told:
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This would have been huge, if true.
The capital-o Opinion in question was this – signed by two barristers as instructed by a leading criminal firm of solicitors.
The Opinion is also dated the same day as the newspaper website article: 1 September 2022.
This must mean that the source of the “absolutely devastating” quote either was referring to a draft form of the Opinion or was providing a view the same day that the Opinion was signed.
We now know that the cost of this legal advice was between £112,700 and £129,500 of taxpayers’ money, as the following tender information was published by the government on 2 September 2022:
(Hat-tip Aubrey Allegretti, here and here.)
This tender information indicates there was no competitive procurement exercise: the government seems to have gone straight to the leading criminal defence firm in early August 2022.
That firm, in turn, instructed two public law barristers (not criminal law specialists).
What is remarkable about this procurement is that the government has its own legal service, with many specialists on matters of parliamentary procedure.
(Which is obvious, if you think about it, given the close working relationship between departments and Parliament.)
There is no obvious good reason, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.
Indeed, it is odd that this was not done – especially as the junior barrister involved is already on the Treasury panel.
Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?
Who authorised this procurement and use of public money?
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Indeed, as this blog has already averred, it is not obvious that this was a legal matter at all, let alone a criminal law matter.
The matter is entirely one of parliamentary procedure – and is not thereby justiciable by any court.
In my view there is even force in the argument that the Opinion does not contain any legal opinion.
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We now know that on 2 September 2022 – the day after the Opinion was dated and the “absolutely devastating” quote was given to the newspaper – that Johnson wrote to the privileges committee:
One curious point here is that he refers to a previous letter to the committee of 12 August 2022 – which is four days after the date of the end procurement law advice, see:
This must mean that the decision to procure external legal advice preceded his letter of 12 August 2022, and so presumably that letter was also informed by the external advice obtained.
You will also see in this letter that Johnson says that “[i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” that he was “placing a copy of the legal opinion in the Library of the House and on the gov.uk website`’.
This is odd.
For as the expert in parliamentary procedure Alexander Horne points out:
HMG would know very well that the usual practice is to send submissions to a select committee and leave it for the committee to publish; it is then protected by parliamentary privilege. But such an approach would have allowed the committee to publish its response at the same time
— Alexander Horne (@AlexanderHorne1) September 26, 2022
There can be no good reason why the Opinion was not just submitted to the committee without publicity – especially if the content of the Opinion was genuinely “absolutely devastating”.
Johnson mentions that he is publishing the letter on the government website [i]n light of the exceptional circumstances and to ensure public and Parliamentary scrutiny” .
But these “ exceptional circumstances” are not particularised, and the committee itself is the means of “public and Parliamentary scrutiny”.
The only plausible explanation that fits the available information is that the Opinion was published on the government website so as to place media and public pressure on the privileges committee.
This would explain how the Opinion went from being finalised, the “absolutely devastating” quote being given to the media, the sending of the 2 September 2022 letter and the publication of the Opinion the same day:
Given that publishing the Opinion would mean that legal professional privilege may have been waived (to the extent that the Opinion was covered by legal professional privilege in the first place), and given it would also mean that the Opinion would also not be covered by parliamentary privilege, the publication of the Opinion on the government website was a high-risk strategy.
The only explanation I can think for this is that the Opinion was commissioned by Johnson for the purpose of that publication.
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As this blog set out, the Opinion is not strong.
This is not just my view as a random legal blogger, but also that of the professor of public law at the University of Cambridge.
Indeed, there cannot be many weaker legal opinions that have ever been published.
That the Opinion was weak has now also been stated by the parliamentary committee itself, in a special report on the Opinion.
The committee in a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion.
The committee’s report is, well, absolutely devastating.
The language is extraordinarily strong for such a report – for example, at paragraph 12:
“We consider this concern to be wholly misplaced and itself misleading.”
At paragraph 6, the committee says the Opinion“is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law”.
And so on.
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Caption: legal commentators reading the committee report
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The committee, which is being advised by a former Lord Justice of Appeal who was president of the tribunal service (who can be expected to know about procedural fairness), could not have been more brutal about the merits of the Opinion.
And this is a committee which has Conservative members as well as opposition members.
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This whole exercise is rather strange.
This blogpost, like the previous blogpost, has not named the lawyers – and this is because we simply do not know what their respective instructions were.
And, as such, it would be unfair to name them in this context.
This is not just libel-speak – and there is nothing in this post which should make you think worse of any of the lawyers involved.
A lawyer is only as good as their instructions.
Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.
There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on gov.uk on 2 September 2022.
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Perhaps the committee will find there was no contempt.
Perhaps the matter will just go away.
Perhaps there will be a political feeling that the former Prime Minister has been punished enough.
Who knows.
But what is certain is that there should be fresh consideration of the procurement of and publication of legal opinions by ministers (of any party).
Something rather irregular happened here, and it is not the sort of thing which should happen again.
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I hope it isn’t inappropriate to give this a plug, but the Good Law Project are challenging the idea that the taxpayer should pay for this.
https://goodlawproject.org/news/the-public-shouldnt-pay-to-get-the-pm-off-the-hook/
I noted that too.
I saw that too. May I also point out that senior staff working at Number 10 who were promised anonymity, and then had their names leaked to the popular press, ( all of them women) have had to seek and pay for legal advice out of their own pockets, as their union refused to get involved constructively. Hardly surprising given it was Simon Case, who initiated a misconduct inquiry into one senior staff, whose ‘work meeting’ he actually attended.
Thank you, David
How the Opinion was obtained is certainly important along with the contents of the Opinion itself.
Who, would you say, was the client?
Best wishes
Having just read David’s blog, it occurred to me that what with the pig’s ear that Ms Truss seems to be making of being PM, together with rumours that letters of No Confidence have already been sent to Sir Graham Brady and that some Tory MPs (B Johnson included) would like to see the return of BoJo to No.10, that many more Tory MPs might now try to scupper the Privileges Committee hearing just so that they could re-instate Boris. The hope being that the return of Boosterish Boris just might save their seats at the next GE…. or is this just too Machiavellian of me!
Given that the last leadership debacle caused Her Majesty to lose the will to live, I don’t see how the nation can face another one.
I propose the most reasonable solution is to rescind the dePfeffel’s resignation and have the election that we should have had in the first place.
I’m pretty sure letters expressing no confidence in Truss are being sent by Tory backbenchers to the 1922 Committee but at this juncture they can only be an anonymous statement of protest since the party rules do not allow a challenge to a newly elected leader for a calendar year from date of taking the role.
I’m afraid the party and country are stuck with Ms Truss for a long time yet.
Rules can be changed, though – can’t they?
I mean, sticking to principles isn’t really their longest suit, is it?
The 1922 committee can always change the rules, I suspect getting enough letters of no-confidence might spur them into doing that, particularly if they are feeling the same doubts.
But dissenters could raise a groundswell to vote against her in parliament.
David wrote:
“There is no obvious good reason why, if this was a governmental matter (rather than a matter for Johnson as a Member of Parliament) why this advice could not have been arranged by the government legal service who would have instructed barristers on the Treasury panel.”
One possible response:
“When you have eliminated all which is possible, then whatever remains, however improbable, must be the truth.” (Arthur Conan Doyle).
David also wrote:
“Why were the instructions routed through an external law firm and not the Treasury Solicitor – especially as this is not a criminal law matter?”
One possible response:
At this juncture, the only thing we know with certainty as that the instructions ended up with Lord Pannick. Is it possible, perhaps, that Mr Johnson attempted to instruct the Treasury Solicitor (or other legal professional within the administration) to provide this particular opinion, only to be told that it would not be appropriate for such a statement to come from “within”?
In a scenario like this, where there is a reasonably complete set of facts “on the board” but they do not make sense, one of two possible situations could be in play: firstly, it might be that the known facts only give the impression of being complete, but there are one or more critical pieces of information not yet known; or, secondly, that the information in play makes complete sense when you look at it from a very particular perspective.
I get the sense that this scenario might fall somewhere between these two; there are almost certainly open questions, but I do suspect that the events as they played out would have a more reasonable air of logic to them if only we were standing at the correct nexus.
Speculating, I see two possible explanations. Either this went “outside” because nobody on the inside was willing to sign their name to it, or because the client believed (clearly, mistakenly) that Lord Pannick would lend the argument an air of credibility.
Any residual curiosity I find for this situation lingers over one remaining question: did Lord Pannick readily agree to this engagement, or was he persuaded to do so, either by his employer, or by the eye-watering sums of money on offer?
“Is it possible, perhaps, that Mr Johnson attempted to instruct the Treasury Solicitor (or other legal professional within the administration) to provide this particular opinion, only to be told that it would not be appropriate for such a statement to come from “within”?”
Any lawyer in GLD would have told Johnson that there was no such basis in law to challenge the “PM Party Probe” – their “best advice” would have been to tell him not to be so bloody stupid.
So my bet is that he was given short shrift by GLD, and decided to waste our money on private legal counsel instead.
The man really is a disgusting parody of a human being.
Exactly this.
Sorry, my attention was distracted by the so-called “oof stones”, of which I was not previously aware.
https://knowyourmeme.com/memes/oof-stones and https://www.silverstonehandcrafted.com/sandblasted-stones/
Oof.
Surely the committee would want to ensure it was properly briefed on the devastating “opinion” and so they should ask the lawyers to attend the committee and explain what precisely was their brief (since the public paid for it.) Then the committee could assure itself that it was able to fully understand this “opinion” in context.
There’s a really interesting angle here, *if* the Committee wants to work with it.
If they were to invite Lord Pannick in for interview and he were to appear, they could ask him about the nature of the questions he was asked and the advice that he gave.
If Lord Pannick were to demur, arguing confidentiality, then the Committee could point out that either Mr. Johnson had secured his services as Prime Minister – in which case, Lord Pannick could well be compelled to answer the question… Or the advice had been secured by Boris Johnson, private individual, in which case the advice could remain confidential, but should not have been paid for by HM Government.
OK, these are “trap” questions (as opposed to “trick” questions). The purpose would not be to induce Lord Pannick to mis-speak or offer false testimony, but to point out that if the advice were paid for by the public purse, then – given the circumstances – there is no reason why a FOIA request could not elicit further detail.
I’d buy tickets to see that appearance before the Committee…
“Then the committee could assure itself that it was able to fully understand this “opinion” in context.”
The committee clearly understands the context – it’s Pannick who needs to learn that lesson.
And we’ll all be drowning in the pool of tears!
Might forensic science advance one day to the point where it could determine when the above-mentioned letters of no confidence were drafted and held in readiness? It would be entertaining to find out how many were triggered by Liz Truss’ seeking nomination, and how many more were engendered by her appearance in the official list of candidates.