23rd March 2023
Here are some further – and perhaps final – thoughts about the appearance of the former prime minister before the committee of privileges of the House of Commons this week.
Boris Johnson not only “lawyered-up” – he was as lawyered-up as it is humanly possible to be.
At his side as he gave his evidence he had a senior partner of the leading white-collar criminal law firm, and just behind him he had one of the leading barristers on due process and fundamental rights of his generation.
Before Johnson’s appearance there had been submission after submission – all at the taxpayers’ expense.
For a politician who has routinely derided legal aid lawyers and activist judges throughout his career, he certainly ensured he had resort to the best possible legal advice when it mattered to him.
And the strange thing is that this was not even a legal proceeding: this was entirely a matter for parliament and not for any court.
But Johnson was not taking any chances: he was lawyered-up to the hilts when no lawyers were needed at all.
However, because he had lawyered-up, and his lawyers had come up with elaborate and technical arguments about fairness and evidence, then the committee responded in kind.
And the the committee had access to its own legal advice, not least that of Sir Ernest Ryder – the former lord justice of appeal and senior president of tribunals.
There are few, if any, lawyers with a better understanding of the rules of evidence and fairness.
And so yesterday saw that the heavily prepped Johnson met and confounded by an even better prepped committee.
The questioning was short and relevant, and rarely outpaced the disclosed evidence, and Johnson was often left at a disadvantage.
For example, Johnson was forced to concede that the “advice” on which he supposedly advised was not from any official or lawyer – but from a political appointed adviser.
Like a tag team, each member of the committee had prepared the ground they had to cover so that as much ground as possible was covered.
From a lawyer’s perspective, the committee hearing was a forensic treat.
But.
A parliamentary committee hearing should not be such a legalistic exercise.
How much better, from a political perspective, if Johnson had simply turned up to tell the truth to a committee of his fellow members of parliament – instead of this legalistic arms race.
As it was, the committee was more than a match to Johnson’s legalistic approach.
And, of course, Johnson is (as this blog has previously averred) playing the long game of trying to influence what sanction follows, if any.
Yet in the shorter-term, the only thing Johnson has gained by lawyering-up will be a more tightly robust and comprehensive committee report than otherwise would have been produced.
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If only others in our society had access to such an equality of legal arms.
Even those who are facing an actual legal or judicial process.
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As someone who was recently arrested on a false charge, that never even made it to court, I am only entitled for the state to rebate me £500 of my about £2,000 costs. This is against earnings of around £40k a year.
That Johnson has burned through well over £100k of taxpayer money whilst earning about £1 million a year, and not evening having the prospect of a criminal record…well it grates somewhat.
You’re in the UK and you’re not part of the elite. What made you think you’d be treated fairly in the UK?
“If only others in our society had access to such an equality of legal arms.”
Well, they can do, but only if they have the funds to pay.
Unfortunately, there is hardly any legal aid now, even for criminal matters. As Nigel Evans found to his cost nearly 10 years ago. “It’s wrong, completely wrong, to remove people’s right to have expert legal representation, and now I’ve gone through it I can see that clearly. … My experience of being falsely accused, and losing my life savings to defend myself proving that, was a road to Damascus moment for me. I’m a changed person now, in terms of Laspo and sympathy for all those who now have to go through the legal system without expert help, support and advice.” https://www.theguardian.com/law/2018/dec/27/its-completely-wrong-falsely-accused-tory-mp-attacks-legal-aid-cuts
Things are probably even worse now.
If only someone had warned about this beforehand. Oh.
https://www.theguardian.com/law/2011/nov/21/legal-aid-cuts-social-welfare
At least the Nigel “I never thought the leopards would eat MY face” Evans situation is funny.
I believe that the committee will find that he has committed contempt of Parliament. I don’t think he has done very well in terms of favourably influencing the committee in the matter of the sanction either. It seems to me that the hearing uncovered (or at least highlighted) four points that could be used as aggravating factors in reaching a decision on a sanction.
1. He was the Prime Minister at the time. Parliament really cannot be seen to condone such behaviour from the head of the government.
2. This occurred during a time of national emergency and the statements in question were on a subject directly related to that emergency. All the more reason to require and expect truthfulness towards Parliament.
3. The only on-the-record advice he took was from his political advisers in the press team. Given who he consulted, we can reasonably infer that this was advice on how to present an answer to the public rather than advice on the facts of the matter. That he didn’t take advice from his Permanent Secretary or any government lawyers on the facts or legal position suggests deliberate intent – he didn’t want to be in a position where he was told on the record that the gatherings were illegal and/or against the guidelines. He wanted plausible deniability.
4. His attitude towards a committee of parliament properly constituted to decide the matter was woeful, in his suggestions that he would only accept their findings if they found in his favour.
The committee knew what they were dealing with when they obliged him to take the oath – not that it would make any difference to Johnson. Free legal advice( How was this allowed? Is it standard? Can all PMs / politicians access free legal advice when summoned to the the Privileges committee, or another exception made for Johnson? What irks me and no doubt millions of other ordinary citizens is that the (now) millionaire Johnson has had all his best possible lawyers’ advice and legal costs paid for by us, the taxpayers, whilst we, the taxpayers, have to be millionaires to afford access to the law.
The expenditure has been described as “Governmental discretionary” and justified because he was a Minister at the time. An NAO Director was going to talk to somebody about this, but as far as I can tell there has been no subsequent investigation or statement.
https://questions-statements.parliament.uk/written-questions/detail/2022-09-05/47506
https://www.theguardian.com/politics/2023/feb/01/watchdog-examines-220000-public-funding-for-boris-johnson-partygate-defence
I agree with your description of Sir Ernest Ryder as a fair and just lawyer. It was he who urged judges to respond sympathetically to appeals for extensions of time when the pandemic really began to bite. Just a pity that some judges ignored this instruction.
it’s also a pity that – as co-author of a new independent Judicial Panel of Data Privacy in 2019 – his innovation was sabotaged by the Judicial Office’s appointment of a Data Privacy Officer for the Panel who had no legal qualifications whatsoever .. and who was also the Data Privacy Officer for the Judicial Office which is not independent.
Johnson perpetuating the “one rule for us, one rule for everyone else” theme that started this whole thing off.
“Johnson was forced to concede that the “advice” on which he supposedly advised was not from any official or lawyer – but from a political appointed adviser.”
This was a particularly interesting and important point. His justification for asking them was that they were present, and therefore knew.
Let’s leave aside the obvious bias those people had – their boss asked them if everything was in order and they told him it was.
These people were witnesses of fact (they knew what had happened), but were not the right people to make a judgement on whether what they saw was within the rules or not.
I don’t think that distinction was made yesterday, but it should be.
“Yet in the shorter-term, the only thing Johnson has gained by lawyering-up will be a more tightly robust and comprehensive committee report than otherwise would have been produced.”
A good and pleasing observation. In addition, Pannick couldn’t act as advocate. It was clear, from Pannick’s facial expressions as his client spoke, that his client hadn’t learnt anything from the advice given.
“How much better, from a political perspective, if Johnson had simply turned up to tell the truth to a committee of his fellow members of parliament – instead of this legalistic arms race.”
Prepare to receive writ, this sentence has done severe damage to my sides.
These quasi-judicial proceedings hearings could have been avoided if the Cabinet Office had not given Johnson a blank cheque for the services of top KCs, with the predictable consequences. The basis for doing so seems in any case quite dubious: the question at issue for the Privileges Committee had little if anything to do with the efficient functioning of government, which is the Office’s remit, but with the specific question of whether Johnson had misled the House.
I say ‘could have been avoided’ because Johnson would otherwise have had to fund legal support himself, or find someone willing to do it for him. But at least that would have avoided giving the impression (perish the thought) that Johnson had the support of government.
Bravo David ! Thanks for this elegant exposition.
“A parliamentary committee hearing should not be such a legalistic exercise.”
But isn’t Parliament actually in effect, the highest court in the land?
Indeed, I was just coming here to say this. Parliament is a court – that’s why lying to parliament is such an important matter and why we’re here in the first place. Before the creation of the Supreme Court, cases went up to the House of Lords.
Thank you so much! This is such a useful perspective – select committees are wonderful when the matter can be examined without a legalistic constraint.
I doubt this will be your final post on the matter. Johnson is claiming unfairness in the telegraph today apparently and probably wont accept any sanction.
When Johnson originally made his remarks in Parliament on 1st and 8th December, I’m sure many of us will have picked up on his reliance on ‘assurances’ from others and realised he was going to lean on this as his get-out strategy.
Similarly, his legalistic theatrics, along with attempts to impugn the legitimacy of the process and those MPs conducting it, to me seems to be a ‘tell’ that he intends to try and mount some vainglorious and pseudo-legal challenges to the outcome; that he knows these will fail, but doesn’t need them to succeed, as the intent is to play to the conspiracy theory gallery as a ‘wronged man’ challenging the ‘elites’. As patently absurd as it is for a man so dripping in privilege as he to claim such status, he did it before throughout Brexit and was believed and supported by millions. So he probably thinks it’s a wave he can ride back into his next sinecure role in order to perpetuate the lifestyle & attention he so clearly enjoys.
“For a politician who has routinely derided legal aid lawyers and activist judges throughout his career, he certainly ensured he had resort to the best possible legal advice when it mattered to him.”
I agree with the sentiment, but it’s a non sequitur because people of Johnson’s caste believe that the wealth and privilege they enjoy is deserved. So he’s entitled to the best defence at taxpayer expense, whereas criminals and undesirables that the government is seeking to deport do not.
Quote “For a politician who has routinely derided legal aid lawyers and activist judges throughout his career, he certainly ensured he had resort to the best possible legal advice when it mattered to him.”
Comment;:Don’t they always !
Quote “How much better, from a political perspective, if Johnson had simply turned up to tell the truth to a committee of his fellow members of parliament – instead of this legalistic arms race.”
Comment: Agreed but even better to tell the truth in the first place.
Quote “If only others in our society had access to such an equality of legal arms.”
Comment: Agreed. Money will, of course, always ensure representation. The parlous legal aid provisions should be THE number one drum for lawyers to bang. Too few openly do so.