2nd September 2022
The “opinion”, we were told, would be “devastating”.
To quote the Daily Mail:
“An insider said of the QC’s legal advice: ‘It is absolutely devastating.'”
Not just devastating – but devastating absolutely.
Gosh.
Huge, if true.
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The opinion has now been published on the government’s website.
The government website calls it a “legal opinion”:
And the document itself is formatted and signed as an opinion, and it even records the instructing solicitor, who happens to be a criminal defence specialist.
But the opinion does not set out any views on the criminal law, and nor is it in respect of criminal proceedings, and the authors of the opinion are not criminal lawyers.
Indeed, the opinion does not set out any views on a matter before any court or tribunal, or in respect of any criminal or civil liability.
One could even perhaps doubt – but for (ahem) what the government website says – whether this document constitutes a legal opinion at all.
That it has been placed happily into the public domain would make one wonder if any legal privilege would attach itself to this document.
But.
The question for this post is not whether it is a legal opinion or not, but is it devastating?
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An opinion – which is the name for a document setting out the views of a lawyer on a particular legal matter – is a curious form of legal document.
It is not a pleading or statement of case, which would set out a client’s legal position before a court or tribunal.
Nor is it a statement containing evidence that would set out the facts which a party wishes to put before a court or tribunal.
And nor is it a skeleton argument, which provides a summary of the legal arguments on which a party wishes to rely.
All three of these documents – pleading or statement of case, statement of evidence, skeleton arguments – are court- or tribunal-facing.
They are to assist the court or tribunal in determining the questions before it.
And an opinion is not itself a letter before action, which a party will send to another party so as to set out its case before a claim is issued.
No.
An opinion (or an “advice” depending on the matter) is usually a thing between a client and their lawyer.
The lawyer tells the client their view of the law – and it is to the client that the lawyer has the duty.
Sometimes, such opinions are shared or published by the client – so as to inform or influence third parties.
For example, before he went on to other things, the tax barrister Jolyon Maugham wrote an informative post on how certain tax barristers were well-known for giving convenient advices to be shared:
(Maugham and I are not close, and I am not an uncritical fan of the Good Law Project, but that was – and is – a remarkable piece of legal blogging.)
The point is that such “opinions” are that – they are the views of a lawyer who has an obligation only to their client, even if the client choses to share that document with third parties.
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As such, an opinion is rarely “devastating” – at least, not to any one else other than the client.
It is merely an expression of a view.
No court or tribunal will adopt such an opinion uncritically as its own view – and, indeed, lawyers are required to set their cases in different documents, mentioned above.
There is a fashion for campaigners and pressure groups to commission opinions from lawyers to use as aids for their goals.
And many lawyers are happy to provide such opinions, knowing they are going to be used for such non-judicial purposes.
But such opinions have, by themselves, almost no weight as a legal document.
They are PR, not probative.
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And now we come to this, capital-O Opinion.
This Opinion is, in effect, a PR exercise.
If this Opinion was, in fact, devastating then – in my view – it could have been quietly disclosed to the House of Commons committee of privileges in respect of its inquiry.
The inquiry would then have been devastated.
The content of the Opinion would have been so formidable that the committee would have known the game was up, and they would have terminated the inquiry with immediate effect.
That is what the effect of a “devastating” opinion would have been: devastation.
But this Opinion was not quietly disclosed to the committee.
It was instead placed into the public domain.
On a Friday afternoon.
After it was leaked to a newspaper.
(And although those reading this blog may not be readers of the Daily Mail, the newspaper was right to give this Opinion prominence and to quote the insider – for the Opinion and what the insider said are newsworthy.)
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The publication of this Opinion is an example of litigation by other means.
It is an appeal for media and public support.
It is an attempt to place pressure on the committee to drop the inquiry.
For if the Opinion were truly devastating there would be no need for publicising it on the government website or for leaking it to the press.
That is the difference between something being devastating and something being described as “devastating”.
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The Opinion is not strong.
Indeed, it relies entirely on the “but for” device, which can be one of the deftest rhetorical tactics for any advocate.
The colour of a thing would be black, but for it being white.
The object would be cheese, but for it being chalk.
And here:
“But for Parliamentary privilege, a court hearing a judicial review application brought by Mr Johnson would declare the Committee’s Report to be unlawful.”
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There are a few points to make about this Opinion.
To begin with, the inquiry into whether Boris Johnson misled the House of Commons is a matter for Parliament and not the courts.
And Parliament is in charge of its own procedures which, as a matter of basic constitutional principle (and the Bill of Rights), cannot be gainsaid by the courts.
So to say “but for” this being a parliamentary matter it would have this judicial consequence is to disregard perhaps the most fundamental part of our constitutional arrangements.
But.
It gets worse.
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The Opinion does not even deal with the alleged wrong of Johnson not promptly correcting the record when he realised Parliament had been misled than him misleading parliament in the first place.
This has been spotted by the Labour MP Chris Bryant:
Ministerial Statement – which was used 200 times last year. Johnson himself used it to correct his incorrect statement that Abramovich had not been sanctioned. Panick seems to want to change the ancient principle that a Member of either House defends their conduct before their
— Chris Bryant (@RhonddaBryant) September 2, 2022
The motion referring Johnson to the privileges committees was as follows:
The question for the committee is whether the misleading of the House of Common amounted to a contempt.
If Johnson did in good faith give an incorrect statement then at some point he would have realised the error.
That would not be a contempt.
But.
Under the rules of Parliament (and the Ministerial Code) Johnson was also under a duty to correct the record as soon as he realised, at the “earliest opportunity” and he has chosen not to do so.
Here is Erskine May, the authority on parliamentary procedure (highlighting added):
On this, see this thread by Alexander Horne from back in April:
However, the rule also has a second limb – which to my mind is equally important. Ministers are expected to correct “any inadvertent error at the earliest opportunity.” Thus, it is not sufficient for the PM to say that he did not “knowingly” mislead Parliament. /4
— Alexander Horne (@AlexanderHorne1) April 22, 2022
And my post on the same:
There is no good reason why this “earliest opportunity” point is not fully addressed by the Opinion.
The Opinion mentions the relevant duty in paragraph 26 (and the corresponding Ministerial Code duty in paragraph 28) but uses it only to somehow say that it indicates only deliberate lying can be contempt.
But if this a point set out in Erskine May, and obvious to Horne (and me) in April 2022, then it is a point that should have been addressed in an Opinion dated 1 September 2022.
As it is, the Opinion offers no defence whatsoever to the “earliest opportunity” charge.
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The Opinion is also odd in how it seeks to judicial-ise parliament.
This has already been spotted by the estimable Hannah White:
Agree – especially the last point. As with Owen Paterson it seems to me the government is tactically invoking legal standards when it suits them to do so when strategically they have little wish to involve the courts in fundamentally political and parliamentary matters https://t.co/ijK5UqFg4S
— Hannah White (@DrHannahWhite) September 2, 2022
This contempt inquiry is a parliamentary (and political) exercise into assessing whether Johnson was dishonest.
This process is required because of the notion (or fiction) that MPs do not lie to the House.
This is because it is assumed MPs are honourable – and it is out of order for one MP to accuse another of lying in the Commons.
Ministers, for example, do not sign “statements of truth” when giving their answers at the dispatch box.
(And you will remember that Johnson lost the prorogation case at the Supreme Court because he refused to sign a statement of truth, under pain of perjury, as to his true reasons for the prorogation.)
As such the privileges committee inquiry is part of what some commentators call the “political constitution”.
It is how certain issues and disputes are dealt with within parliament, rather than outside of parliament by courts or other agencies.
The Opinion, by seeking to judicial-ise part of the process is taking a misconceived pick-and-mix approach.
The committee has set out its process and has called for evidence:
A motion was passed by the Commons; a process was adopted in accordance with the relevant rules agreed by Parliament; documents have been sought and evidence has been called for.
This is entirely appropriate for the parliamentary issue which needs to be addressed and resolved.
If the committee were to be amenable to judicial review, then the entire process would cease to be an entirely parliamentary matter.
The whole process would have to be recast, with judicial protections built in at each stage.
And, in any case, there is no good reason – and certainly no reason set out in the Opinion – why Johnson cannot simply explain why he gave a misleading statement and did not correct it at the earliest opportunity.
He can answer, parliamentarian to parliamentarians.
The motion of the House gives precise particulars of the statements, and he was the one that made the statements.
The sanction, if he is found in contempt, is not civil or criminal liability – no criminal record or county court judgment – but a sanction to him as a parliamentarian – he could be suspended, or perhaps face a recall petition.
This is a parliamentary process to deal with a parliamentary question with a possible parliamentary sanction.
To assert that “[b]ut 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” is therefore not just deft, it is also daft.
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As a further observation: why has this matter not seemingly gone through the government legal system and treasury counsel?
It appears a top white-collar criminal firm and the barristers have been instructed directly by the Prime Minister, presumably with public money.
For all Johnson’s derision about “lefty lawyers” and his supporters’ attacks on legal aid “fat cats”, Johnson is very ready to use taxpayer money to find technicalities so as to frustrate processes.
Those caught in the criminal justice system do not have access to this sort of legal advice.
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To conclude: the Opinion is not only not strong, it is a disappointment.
One would hope and expect that its esteemed authors would have provided a more compelling critique of the process; that they would have engaged with the “earliest opportunity” charge; and that they would have explained, in parliamentary terms why it was unfair, rather than relying entirely on a “but for” rhetorical device and a false analogue.
This could have been a far more interesting opinion.
But instead, we got this weak, misconceived, incoherent document.
Frankly, it is devastating.
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POSTSCRIPT
Exc: Taxpayers are footing the bill for Pannick’s legal advice disparaging the Partygate probe by privileges committee.
£129,700 contract for “legal advice” awarded last month and published today.
It went to Peters and Peters – who instructed Pannick.https://t.co/DB5FnraSJL pic.twitter.com/dLF9K5WboG
— Aubrey Allegretti (@breeallegretti) September 2, 2022
Government sources have confirmed this contract was for Pannick's work. It covers legal advice from August to December 2022 – so presumably more to follow.
We're told the justification is it's a defence of Johnson's actions in his official capacity as PMhttps://t.co/3RvDc8k2K4
— Aubrey Allegretti (@breeallegretti) September 2, 2022
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An excellent demolition job, if I may say so.
Of course, the opinion is probably intended for the Court of Public Opinion (or at least that part of it that reads the Daily Mail or similar).
I was more than a little amused to see that Jolyon Maugham also seems to put Capital Letters where the General Public might not do so.
Thinking of DAG’s three Ps, I can help thinking popularise, polarisation and post-truth are alive and well in the thinking behind the opinion.
What I can’t really understand is why he didn’t just correct the record after he received the fix penalty notice. If he says he inadvertently mislead the House surely correcting the record would have saved him this enquiry or would they have examined whether he deliberately mislead the House in any case?
Because he is Boris Johnson
I wonder what a JR would make of the decision to commission and publish the advice…
Difficult to see how it (ie the decisions (a) to commission and (b) to publish) could be held to be Wednesbury unreasonable given the current state of the political constitution. Irrelevant factors considered… no; relevant factors ignored… That depends what you think about the intended effect on the intended audience. Over to you…
By whom were those decisions taken? If by B de P J qua private individual, then they are not amenable to JR in any case.
I was thinking along similar lines, albeit wondering if the £129,700 should have been paid by the government or by the “Former Guy”.
But then I recalled that a key thread of his argument in defense of his presence at the social events was in his professional capacity as “leader of the party”, to instill motivation, share some bonhomie and of course to quaff alcohol.
The similarities with the trans-Atlantic “Former Guy” and that individual’s ability to get the Republican National Congress to pay for his court cases are quite remarkable.
My thinking really was on value for money grounds, and per DAG’s post, advice on the potential outcome of a JR of a process which cannot be subjected to JR…
At the very least, you’d expect that they’d have to confess that it was for communications purposes.
So, it would have been devastating, but for its content.
Pleasing :-)
Applause! You’ve had me jumping up and down while reading this blog post. I do not pretend to understand the nuances of the law but reading this article was a joy. Thank you, David. You made me very happy, as you address the issue in detail. Even if the content you are discussing describes yet even more contempt of the electorate, by those who should know better. (I like experts like you.)
In my opinion, this is yet another Johnson bullying schtick. He knows if found to have lied to Parliament about parties he did not know about… and he clearly did as one of them was attended by his 2 top advisers and took place during the first lockdown, the outcome may prevent him staging a comeback. This parallels Trump who is attempting the same manoeuvres. Using the Mail to issue a ‘warning’ shows how shoddy ( and desperate) he is. I am grateful for the clarity of this blog and the explanations quoted. Staff at Number 10 deserve better than to be thrown to the media by this despicable man. As do all those who obeyed the Covid lockdown rules and suffered family bereavements.
Might this “Legal Opinion” be in itself a contempt? Erskine May (para 15.2) defines a contempt as “any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of their duty, or which has a tendency, directly or indirectly, to produce such results”
Erskine May goes on to give as an example: “in 2010 the Committee on Standards and Privileges concluded that a firm of solicitors was in contempt of the House when it threatened a Member with legal proceedings if he were to repeat in Parliament statements he had made outside.”
As you point out, Parliament is not subject to Judicial Review – the Bill of Rights (in which Article IX prohibits questioning of any procedure in Parliament in the courts) is regarded as part of “the constitution” – and “The Opinion” acknowledges that JR cannot be used to challenge a Parliamentary procedure.
Given the way in which those on the other side of Brexit arguments from Johnson have often been branded as traitors and his removal is being presented as an attempt to undo Brexit, “The Opinion” could reasonably be held to be a device to inflame passions and (especially as two MPs have in recent years been murdered) to intimidate MPs on the Committee and perhaps in the House as a whole as no punishment can be inflicted save by the authority of the whole House and that means a division with a record of those who voted for punishment.
I note that “The Opinion” does not refer to the person to whom it is addressed as “The Prime Minister”. Even in paragraph 1, it says “We are asked to advise the Prime Minister, the Rt Hon Boris Johnson MP, ” Thereafter instead of saying “the Prime Minister” it says “Mr Johnson” – e.g. para 52 “No reason has been given for according Mr Johnson a lesser degree of protection as to standard of proof than in those other cases.” Surely if this were intended to protect the office of prime minister it would not be written like this?
A member of the House of Lords and another individual have written a document that will undoubtedly be used in terrorem against Members of the House of Commons.
There are many paragraphs in the Pannick Opinion that highlights the duty to correct misstatements, culminating perhaps in paras 44 & 45.
Yes, indeed – and not one of those many paragraphs deal with his breach of that duty
It oxcurs to me as a lowly employment lawyer that sometimes I advise clients in internal procedures to deal with matters directly themselves (with advice) so as not to encourage an openly adversarial situation if they know a lawyer is involved. Isnt BJ risking this with his internal tribunal? Except there is no Court as the ultimate sanction.
Well, that confirms what I thought – as a layman – that this was not an Opinion in any sense that the term is generally used.
This leads on to the question of whether there are any professional rules about what may or may not be called a legal Opinion.
Yes, the irony of Johnson relying on a lawyer to try to get him off the hook. Thank you for popping his bubble, David.
My observations:
It was clear from the first paragraph of the Opinion that like was not being compared with like, which might be surprising coming from someone who sits in the Upper House. Clearly he needs to read up on the conventions.
It’s interesting, though not unusual, that the Mail and Telegraph were briefed about this yesterday, while the Guardian and Mirror had to wait for the ‘opinion’ to be published.
As Chris Bryant has put it: ‘Boris Johnson has always managed to find himself innocent in the court of his own opinion’. In this case, he’s throwing himself on the mercy of the court of public opinion.
I hope this will put fire in the belly of the members of the Committee and increase their resolve to act fearlessly and with integrity as they pursue their enquiries.
Hear, hear!
The squealing of the greased piglet when caught
Great post thank you.
As Carol Hedges points out this is Johnson echoing Trump. Delay, obfuscate, deny any wrongdoing. Johnson picks a top QC to write the opinion not a Rudi Giuliani and get the public purse to pay the fee true to form.
How has a brilliant lawyer like David Pannick not yet been head-hunted to join Donald Trump’s legal team?
Quite simply one of your best. 👏👏👏
Hi David. Would you care to speculate on what Pannick’s instructions were? Presumably Johnson didn’t just say ‘advise me’ so I wonder what instructions would have produced this document.
Unless the whole thing is a sort of passive-aggressive attempt to pander to their client’s best interests. “this is the best we can do and we know it’s crap”.
So, again the taxpayer is footing the bill for Johnson’s personal behaviour.
£129,700.
Thank heavens he’s going.
Surely this is misuse of public funds and therefore some sort of misconduct in public office that is sufficient for a “foreigner” to be deported. Boris, being born in New York, can be deported just as they with to strip Shamima Begum of her citizenship?
Fascinating blog, thanks. I wonder why such a distinguished advocate should have associated himself with such a tawdry exercise.
Indeed. And what Pannick would make of his leftie colleagues impuning his impartiality. Can he sue for the slur to his professional reputation?
I once asked a rather eminent QC whether they would be able to advise my client, in writing, on two subtly different bases: one for their own internal use, the other that might be published, or at least shared with third parties with a legitimate interest in the substantive proceedings (it was a ticklish TVG registration case, worth several £m to the client landowners). I was told, gently, but very firmly indeed, that this was not how the bar worked. A barrister’s Opinion should be just that. I wonder what that particular QC would make of the Pannick Opinion.
Julian – ‘subtly different’
Yes, very ‘subtle’
Great work as ever, thank you for writing this.
I noticed that on the government website, the document title uses “Joint Opinion,” while the page heading uses “Legal Opinion.”
I wonder when they will correct the record about the advice on parliamentary procedures for assessing failure to correct the record without addressing the subject’s failure to correct the record…
It might be a sub-point of the spurious “this wouldn’t happen in a court of law” argument, and I’m not a lawyer, but I was puzzled by the opinion in favour of Counsel responding for Johnson at Committee.
Acknowledging that this is not usual (I can’t recall an MP taking this route), the example given is of the Maxwell sons. Two non-parliamentarians facing a huge fraud case with a custodial sentence if found guilty in court. Johnson has already paid a £50 FPN and the Met has no further interest.
Why even make the comparison?
I think theCounsel in the Maxwell case did not address the Committee- they sat alongside and advised their clients. This is allowed in the Committee of privileges inquiry too
In short: every word of this Opinion weakens Johnson’s standing in front of Parliament, and some of the omissions in it – which have now been made glaringly obvious – are indeed devastating.
And legal opinions aren’t terribly effective in political terms.
Which begs the question: if this Opinion is so deeply flawed in legal terms, and laughably defective in terms of the parliamentary processes it addresses, and politically ineffective…
…What on Earth was Boris Johnson playing at?
Your view, that he is trying to use legal arguments to obstruct a parliamentary process of accountability when it suits him, is the least worst explanation I’ve heard.
But even so: can he possibly be this inept?
Meanwhile, The Daily Mail are taking it at face value: and I don’t think they are wholehearted supporters of Boris Johnson nowadays. So the obvious question is “What’s their agenda?” and the best answer that I have is that they are eager to support anything that weakens both legal and parliamentary mechanisms which hold power to account.
If I’m right – and this is arguable! – I should concede that the Opinion might actually be politically effective after all. Because the Daily Mail are damnably good at politics, for special values of ‘good’ that might not be in the public interest, whatever that might actually be; and if they believe that this ‘Opinion’ is useful to them, I’m inclined to believe that they are right.
I wonder what they hope to see devastated.
“Meanwhile, The Daily Mail are taking it at face value”
Probably not – they’re likely to know as well as anyone what the realistic value of this “opinion” is.
What they’re doing – what they DO – is barefaced lying to their readership about its true meaning and significance.
“the Daily Mail are damnably good at politics”
They’re good at telling the lies that the people in their echo chamber want to hear and to believe – is that being “good at politics”?
Of “Indeed, the opinion does not set out any views on a matter before any court or tribunal, or in respect of any criminal or civil liability.”
May I suggest that, nevertheless, it is the advice of two barristers, properly instructed by solicitors, as to the exercise of penal powers by the House of Commons (a division of the High Court of Parliament) advised by a committee of privileges?
If that is not a legal opinion, I as a mere layman don’t know what is. (By all means, an adept is welcome, please, to explain why I am wrong?)
Perhaps a plain finding of fact would be another matter with a lower standard of proof?
It would be a valid reasonable opinion – but for the fact that the matter at hand is not a legal matter.
You seem to have missed the point.
The case/discussion doesn’t concern the law or the courts. It’s within Parliament who make their own rules for procedure.
Anyone advising Johnson about his position would condescend to the facts and point out that whether or not his original remarks were in good faith, his greatest exposure arises from whether he corrected himself as soon as reasonably possible. It is not an Opinion, it is an embarrassment.
“his greatest exposure arises from whether he corrected himself as soon as reasonably possible.”
That’s The Game, isn’t it? Deflection, Dead Cats.
“Don’t look over there at the *important* thing, look over here instead…”
Very substantial, informed, and helpful post written in short order. Thank you.
A wider problem is that we get the PM’s that we deserve.
Johnson clearly is, and always was, a narcissistic charlatan whose one and only interest is himself.
That the current political environment propelled him to leader of the Conservative Party and PMship and that he could then con the electorate or it was willing to be conned is the key issue.
One of DAG’s best posts ever. Thank you.
And, yes, as per some above comments, I also wonder how David Pannick allowed himself to get entangled in this way.
But for Parliamentary privilege, why is the inquiry into whether Boris Johnson misled the House of Commons a matter for Parliament and not the courts?
If they cannot trust parliament to be impartial, shouldn’t he forgo parliamentary privilege and put the case before a criminal court?
They surely cannot suggest the criminal courts are compromised and they keep telling us that the innocent have nothing to fear.
Would that the FT had read this blog before publishing themselves, or even better, commissioned a piece from DAG. A Parliamentary matter dealt with appropriately by Parliamentary procedure. Another misuse of public funds for private gain. And another jolly jape conceived by the Eton entitled.
Verrry Interesting – but I can’t see it leading to anything useful. Boris will walk away scot free as was always the case. Noble that you have documented the rotten injustice of it all but hey ho.
Never wrestle with a pig, you both get dirty and the pig likes it.
Masterful!
The opinion is like someone trying to do woodwork with a spanner. Right idea, wrong tool.
The thing that struck me was that the opinion (‘a bloke down the pub told me’) does not state it’s terms of reference or the question it is supposed to answer. What follows is therefore simply some thoughts. Very expensive and clever thoughts but not addressing a defined requirement, so worthless.
I shall treasure:
‘A thing would be black, but for being white.
A thing would be chalk, but for being cheese.’
As a side issue I would query whether the Opinion has been published on « the government’s website » as David claims in his opening.
It has been published on the GOV.UK site.
I would argue that this is « our » site which « we « pay for even though it is administered by the Government’ s Digital Service.
The site comes with its’ own Terms and Conditions page which states this:
« You can use GOV.UK to access online Government services and transactions e.g. apply for Universal Credit or register to vote. «
The publication of the Opinion does not dovetail into this definition.
The site then goes on to say:
« We do not publish advice on GOV.UK. You should get professional or specialist advice before doing anything on the basis of the content. » !
There are provisions to request content be removed from the site although any complaint would surely be swept aside and in any event the gun has already been fired.
I raise the issue simply to highlight how shoddy and cack handed this all is and is likely to become.
Bungling and incompetent, verging on culpably farcical.
“I would argue that this is « our » site which « we « pay for even though it is administered by the Government’ s Digital Service.”
So by that measure you should be able to add, change or remove some of its content, Richard.
But you can’t. The Government can.
Because it’s the Government’s website, not yours or mine.
I can also heartily recommend Mark Elliott’s quite masterful deconstruction of Pannick’s argument:
https://publiclawforeveryone.com/2022/09/02/legal-opinion-on-the-privileges-committees-partygate-inquiry-some-comments/
Well this opinion is all over the DM but the TG seems to keep to ‘watered down enquiry’. Which seems the whole idea.
Because Johnson is still the Tories top salesman, too valuable to be dumped just yet. Loved by the Blue Rinse brigade, he is good looking, does not look as if he has BO, a line in amusing quips and can lie easily – the ideal front man.
Truss is merely a sacrificial lamb who will likely be toast by Springtime, if we can find any gas. Bring Back Boris is the insurance policy. What is not to like….
Jaw-droppingly awesome.
Thank you Mr Green, very helpful.
The smell of fear.
I wonder whether Lord Pannick approves of how his opinion has been used, by the pigsty that is Johnson’s public relation’s Court. Given this has been paid for by the taxpayer perhaps we could have a FOI request to disclose all the conversations and correspondence that Johnson and his lackies had with the Daily Mail, the Daily Express, the BBC (whom I should guess were also briefed) and any other favoured devourers of this ahem output before the opinion was published.
I also find it difficult to understand what Johnson hoped to achieve. Publicly impugning the Committee even before it begins its work doesn’t look smart, to use an elsewhere-favoured adjective. I’m sure all the Committee members were mightily impressed as they choked on their muesli.
The Republicans in the USA ran similar tactics during the Trump administration: claiming the ‘beyond reasonable doubt’ standard for the Muller Report and the allegations of sexual assault levelled at Brett Kavanaugh, when no such standard of proof was required for political consequences to follow…
It is difficult to reach a considered view of the standing of a legal opinion without seeing the instructions setting out the basis on which that opinion was requested and the background against which it was delivered, including any relevant assumptions and qualifications.
As well as Lord Pannick, whose expertise in public and human rights law is well known, we should mention the other barrister who delivered this “joint opinion”. Jason Pobjoy is not a QC but – given his experience and standing – will no doubt be applying soon. His experience also seems to be primarily public law, with a prize-winning PhD thesis on “The Child In International Refugee Law”. And the instructing solicitor at Peters & Peters is a specialist in business crime. Both interesting choices for an opinion on the procedure of a committee of parliament. Is this a matter or criminal law? Something akin to an internal disciplinary matter? Or a matter of political accountability?
The opinion is what it is, but it was somewhat curious that such a heavy emphasis was placed on the need for intention in order to find contempt by deliberately intending to mislead parliament. Well, duh, deliberate lying is intentional misstatement, knowing that the statement is false. But there was no analysis of whether contempt could also be found in a case of an honest or inadvertent mistake (or at least one where is was not possible to conclusively conclude intentional or knowing dishonesty) but then a failure to correct the record. As the opinion notes, at paragraph 32, “it is plain that an honest mistake merely leads to an obligation to correct the record. Such a mistake is not dishonourable.” But nothing is said about whether failing in that obligation to correct the record might be a separate ground of contempt. I wonder if that aspect was deliberately, knowingly and intentionally omitted on the basis of the instructions.
Surely tax payers monies used for this procedure can be directly recovered from Boris Johnson, as he is still on payroll, as can be done to members of the public for fines, overpayment, unpaid tax etc,
“Johnson is very ready to use taxpayer money.”
Know what you mean but there is no such thing as taxpayer money as of course, all £s Sterling are created out of thin air by the Royal Mint or the Bank of England. Taxes pay for nothing but are levied to prevent inflation.
Thatcher got it completely the wrong way round and the Tories have been deceived – or are just deceiving the rest of us – ever since.
Johnson is in fact very ready to use government money, which gets the accounts right – although of course it doesn’t correct its egregious use.
Thank you for pointing it out, Peter.
It is very important that the electorate understand this fundamental fact.
Pannick’s Opinion is by no means devastating. But I’ve just read something that is.
Presumably this was rushed out before Cincinnatus returned to his farm because his successor would have had no interest in prolonging his membership of the House of Commons plotting his return?