Understanding Boris Johnson’s difficulty with the Cabinet Office lawyers – and why it may have wider implications

29th May 2023

Boris Johnson is not happy with the Cabinet Office – and one suspects few will be sympathetic to the former Prime Minister.

But does he, for once, have a point?

Does he, in this particular instance, have any cause for complaint?

Johnson’s grievance is in respect to the referral by the Cabinet Office of certain matters to the police – that is, to the Metropolitan police in respect of what may have happened in Downing Street, and to the Thames Valley police in respect of what may have happened at Chequers, the country residence used by the Prime Minister.

And there is no doubt that Johnson is not happy.  According to a weekend news report:

“When Johnson found out what had happened he was in the United States, a visit that culminated in dinner with Donald Trump last Thursday.

“He and his team were first confused, then apoplectic, then called in new lawyers.

“‘Boris is absolutely furious,’ said one of those in touch with him last week. ‘He was completely flabbergasted and he suspects foul play. He has been spitting feathers. He feels his reputation has been unfairly trashed.'”.

“Apoplectic” is a strong word.

What was the cause of this apoplexy?

*

“Apoplexy (noun): A malady, very sudden in its attack, which arrests more or less completely the powers of sense and motion […]”

– Oxford English Dictionary

*

A good starting point is the nature of the Covid Inquiry itself.

It is a statutory public inquiry under the Inquiries Act 2005, and this means the Inquiry has formidable legal powers, including to request documents.

Previous posts on this blog (here and here) have set out these powers and also the background to the current and potentially consequential stand-off between the Inquiry and the Cabinet Office.

What this means, in turn, is that the Cabinet Office has to do its own information-gathering exercise so that it is in a position to disclose documents and other material to the Inquiry (even if there is disagreement as to the scope of that disclosure).

*

Now let us move to the position of Johnson.

A news report last December told us the following:The report went on to explain:

“The taxpayer will be funding legal fees for Boris Johnson and Matt Hancock when they appear at the official inquiry into the Covid pandemic next year […]

“Even though the two men are no longer prime minister and health secretary, the Government is covering the cost of legal representation for all former ministers who were involved in the official response to the pandemic, as well as people currently serving in those posts.”

One key point here is that the Cabinet Office is dealing with the disclosure to the Inquiry relating to Prime Ministers past and present, as well as to other Cabinet Office ministers.

This is because within the government of the United Kingdom there is not any formal “Prime Minister’s Department” other than the Cabinet Office.

*

It is important to note that this issue is distinct from the government paying the legal fees of Johnson in respect of his problems with the House of Commons privileges committee.

That the government is paying the legal fees of Johnson in respect of his problems with the House of Commons privileges committee is actually difficult to justify (as the issue there is in respect of his duties as a parliamentarian rather than directly as a minister).

The payment by the government for the work in respect of a public inquiry is, however, far less controversial – public inquiries into what was done by public bodies can require extensive disclosure exercises with the advice of specialist lawyers, and so it is normal for the government to pay for the work involved.

There is nothing untoward in the government paying the legal costs for all former and current ministers and officials caught up in the work of this Inquiry – and there is certainly a public interest in disclosure and evidence being managed by experienced and specialist lawyers.

*

But.

That the government will (and should) fund the legal work required for former and current ministers and officials that does not necessarily mean that the work should be done by government lawyers.

It should be open to former and current ministers and officials to appoint their own lawyers – especially if it felt there is a conflict of interest.

For example, at the Hutton Inquiry the journalist Susan Watts insisted on separate legal representation, as she believed that there was a conflict of interest with the BBC and this separate representation was reportedly paid for by the BBC.

The extent to which this separate legal representation at inquiries should be funded by the government (or an employer) is not easy to determine.  But there is a good argument that there should be funding for the work of disclosure and the provision of evidence, for that is the legal work required for the public good of the process of the inquiry.

*

Now, let us go back to December last year.

Johnson was presented with a situation where he could have insisted on getting his own legal representation (perhaps at public expense) or going along with the work being both funded and conducted by the Cabinet Office.

The crucial distinction is that if he had appointed his own lawyers they would have had a direct legal and professional obligation to act in his interests, consistent of course with his obligations to the inquiry (and to any court) and under the general law.

At this point, Johnson could – like Watts at the Hutton Inquiry – insisted on having his own lawyers.

But Johnson either made a decision to go with the Cabinet Office lawyers or (more plausibly) avoided making any decision so that the default was that the work would be done by the Cabinet Office lawyers.

And here we come to the crucial point: the Cabinet Office lawyers have no obligations to Johnson.

The “client” of government lawyers is, well, the government.

Government lawyers also have obligations to the inquiry (and to a court) and they have professional obligations as solicitors and barristers.

But they have no duty to former ministers and officials – nor even to current ministers and officials in respect of ministers’ and officials’ private personal capacities.

So when Johnson handed over the documents to the Cabinet Office he, in effect, loss control of those documents.

*

And now we come to another important point: those documents exist, and those documents cannot really be de-invented.

(If those documents had somehow been – ahem – “lost” then that is altogether another legal issue.)

But as the documents exist then the question of disclosure to the Inquiry would have come up at some point – whether it be for the Cabinet Office lawyers or for Johnson’s own lawyers.

The difficulty of what to do with those documents if – and it is an “if” – they contain evidence of wrongdoing would have come up at some point.

Johnson denies that the documents contain any evidence of wrongdoing – and as those documents are not in the public domain, this denial cannot be gainsaid.

Once those documents had been disclosed to the Inquiry even by Johnson’s own lawyers, then this means he and his lawyers would have lost control of the documents at some point.

And depending on what was made of those documents once they were seen by a third party then a referral to the police may have just been a matter of timing.

*

But.

Timing is not everything; there is also the question of fairness.

Did the Cabinet Office act unfairly in referring the documents to the police with no notice to Johnson, so that he could have made representations or sought independent legal advice?

*

According to the detailed Sunday Times news report, the sequence of events was as follows:

16th May – “lawyers for the government legal service, who were helping Johnson to put together his statement for the Covid inquiry, came across entries from his official Downing Street appointments diary, which suggested there had been gatherings in Chequers and No 10 that may have breached the Covid guidelines”

The senior official at the Cabinet Office is then notified.

We are told that the official feels “duty-bound to pass the material to the police” or run the risk of being accused of breaching his obligations under the civil service code of conduct.

18th May – the documents are sent to the police.  The Sunday Times quotes an official as saying:

“The only assessment we did was whether we should pass it to the police. It is a matter for the police to decide whether it constitutes grounds for an investigation. It would have been totally inappropriate to block it. It would also have been inappropriate to inform the former prime minister [Johnson] unless the police were happy for us to do so. On the Friday they said they were content to inform him as a courtesy.”

19th May – the head of propriety and ethics in the Cabinet Office, called Johnson’s office to inform him.

We can supplement the above timeline with this tweet from the government’s former senior legal official Jonathan Jones:

We who haven’t seen the latest Johnson papers (almost the entire world) can’t know if they show law-breaking. But what if they do, and civil service HADN’T referred them to the police?

“Cover up. Bias. Breach of constitutional duty to uphold the law. Failure to follow guidance” https://t.co/bEkGDeYCWE

— Jonathan Jones (@SirJJKC) May 27, 2023

Jones makes a good point: what were the government lawyers to do?

Remember that (a) the documents could not have been de-invented and (b) the documents would have had to have passed to the Inquiry at some point, even if not via the Cabinet Office.  It is therefore only a question of timing until the documents came to public light.

And if – if – the documents contain problematic content then there would be questions about why the documents had not been previously referred to the police.

Jones also helpfully links to the Civil Service guidance:

So maybe that outdated Directory of Civil Service Guidance that everyone had forgotten about (until someone spotted the stuff about contact with the Opposition) turns out to be relevant to the reporting of possible crimes too … pic.twitter.com/k1n5FZ6jPB

— Jonathan Jones (@SirJJKC) May 23, 2023

The guidance he links to is here (though the pdf seems borked for scrolling).

The booklet “Giving Evidence on Information about Suspected Crimes: A Guide for Crown Servants” does not appear to be on the internet.

But the essence of the guidance is simple: if there is evidence of criminality then the matter should be escalated to the most senior official and it is for them to make a decision.

According to the weekend news reports, this is exactly what happened, and the decision was made by the most senior official at the Cabinet Office.

*

What is not clear, however, is why an official said “It would also have been inappropriate to inform the former prime minister [Johnson] unless the police were happy for us to do so”.

On the face of it, this is not a matter, like say suspected money laundering, where there was a real risk of “tipping off”.

No doubt it would have been a difficult, if not excruciating, conversation – but would it actually have been “inappropriate” to not inform a former Prime Minister that a referral may have to be made and for him (or her) to make representations and to now seek separate legal advice?

Somebody cooperating with the government on submissions to a Public Inquiry was suddenly to be dropped in to possible legal jeopardy.

Of course, there is no legal or professional obligation on the civil service to have contacted Johnson in advance – as set out above, the government owes no duties to former ministers or officials.

But the lack of a firm obligation does not, by itself, make it – to use their word – “inappropriate”.

This may not be a word to just nod-along with.

*

As this blog has previously averred (here), Johnson’s legal defence to the previous Covid police inquiry was skilfully done.

By framing his roles as “showing leadership” in a work context he deftly side-stepped all but one of the incidents that were referred to the police.

It was an impressive legal strategy, which corresponded neatly with the evidence which had to be explained.

Yet the strategy, having served one purpose well, had a couple of gaps.

First, it did not explain his overall state of knowledge of the Downing Street parties, even if his own role at the gatherings was defensible – and this is what the House of Commons privileges committee is looking at.

Second, it only covers the work gatherings where other employees were present – and so not gatherings either in the Downing Street flat or at Chequers.

Perhaps there are also solid legal justifications for those gatherings.

Here the Sunday Times tells us:

“Johnson called in a separate legal team working for Lord Pannick KC, who has been working for him on the privileges inquiry. By 9pm they had determined that every one of the gatherings in the diary entries was defensible.”

(Note here the delightful small detail of the lawyers’ time-keeping.)

Faced with what may well be a new police investigation, it may well be that Johnson and his lawyers can point to the applicable law and guidance of the time to show that the gatherings were within the legal rules.

Perhaps.

But it may also have been open to the Cabinet Office to have gone back to Johnson for (ahem) clarification as to why the gatherings evidence by the diary entries were within the guidance at the time rather than reporting the matter to the police.

The Cabinet Office was, no doubt, acting within its rights to refer the matter to the police without notice to Johnson and asking for his further input.

But (at least to me) there is a nagging feeling that this matter could have been dealt with better by the Cabinet Office.

Not least because this referral may now cause a moral hazard for other former ministers and officials who otherwise would work with the Cabinet Office in respect of the Inquiry.

Any sensible former minister and official should now consider insisting on separate legal representation, rather than assuming that the Cabinet Office would not do the same to them.

*

Of course, Johnson should have (in my view) appointed his own lawyers (at either his or the government’s expense, or a mixture of both).

Had he done so, then the lawyers would have explained the risks to Johnson on disclosing the documents, especially if they contained unwelcome details.

The documents would still have had to have been disclosed, but Johnson would have been appraised of the risks, and he would be advised on what to do next and how and when to make representations.

(And if Johnson were prudent he should also now apply like a shot to be “a core participant” in the inquiry, so as to avoid various further avoidable surprises.)

Of course: if Johnson chose to go with the Cabinet Office on the sole ground of potential additional legal costs then one would need a heart of stone not laugh like a drain.

But putting such mirth aside, one can understand the shock, if not quite apoplexy, of discovering a government department handling your submissions and disclosures to an Inquiry had – without notice – referred you instead to the police.

One can understand why Johnson has now appointed his own lawyers.

He should have done so before.

*

One can also understand that the Cabinet Office had to take the matter seriously.

The Cabinet Office would certainly have also faced criticism had they pretended there was not problem if it does turn out that the documents are (literally) incriminating.  Jonathan Jones’ point above is well-made.

It was entirely right that the matter was escalated to the most senior government official – and that official will have to account for the decision they made and how they made it.

And given the lack of any direct obligation to Johnson, the Cabinet Office were within its rights to make a referral to the police.

(The various legal threats reported this week by Johnson against the Cabinet Office, from defamation to data protection, are not convincing.)

But.

Even if we can understand the respective positions of Johnson and the Cabinet Office, this situation does seem a mess

And it is a mess with implications for others – and so thought must go into how these things should be dealt with.

Given the vagueness and ever-changing complexity of the Covid regulations few would feel certain that the documents they provide to the Cabinet Office (and/or the Inquiry) would not also evidence potential breaches of the criminal law.

This is thereby not going to be a one-off problem.

The overwhelming public interest is that the Inquiry gets the evidence it needs.

And risks of referrals to the police for possible prosecutions – for Johnson or for anyone else – may inhibit that overwhelming public interest.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.