Category: Coronavirus – COVID-19

‘Partygate’ is not ultimately about lying to parliament, or breaking the criminal law, or putting lives at risk – it is about fair dealing

24th May 2022

‘What is justice?’ is a question that has been long discussed by clever philosophers, jurists and political theorists.

But one way of understanding justice is to see it not as a thing, but the absence of a thing: justice means a lack of injustice.

Justice is thereby defined by what it is not.

A just society is one where concrete injustices have been addressed; a just outcome is the solution to an actual unjust situation; and so on.

And for many it is injustices that matter, for injustices rankle.

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With ‘Partygate’ it seems what rankles most is the unfairness of it, the injustice.

That the current Prime Minister lied to Parliament and to the rest of us surprises no sensible person, for it is the one quality about Boris Johnson that all sensible people will know to be true.

That the current Prime Minister broke the law and guidance again is no shock – and, indeed, it would be more of a shock if, in any given situation, Johnson had followed the law and any guidance when he did not need to do so.

It does not even seem to matter to that many – though there are exceptions – that Johnson broke laws and guidance designed to keep people safe.

The anger about ‘Partygate’ appears (at least to me) not to be motivated primarily by the concern that Johnson was personally putting others at risk (though this will anger some).

What seems to be what upsets people about ‘Partygate’ is that while others were immensely affected because they had to comply with rules, or were punished if they did not, the Prime Minister and others in Downing Street casually did not comply with those rules.

The rules, of course, that Johnson and his government imposed upon the rest of us – the laws his government issued and enforced, the guidance he and his government promoted night after night.

The stories which appear (again to me) to be getting the most traction on news sites and on social media are those from people who, for example, could not visit their loved ones on their deathbeds or were not able to attend funerals.

Had the story been about Johnson in a serious dilemma choosing to break the rules to see a loved one in hospital or attend a funeral, then people would perhaps be more forgiving.

Many people in extreme situations may choose to break rules.

But the situations in which Johnson and his circle broke the rules were not extreme situations or dreadful dilemmas.

And this disparity in the seriousness with which one abided with the rules is what annoys – disgusts – people who would otherwise shrug.

Not the lies, not the rule-breaking itself – but the unfairness.

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‘Partygate’ is not about parties or cakes; and it is not ultimately about lying to parliament, or about breaking the criminal law, or about putting lives at risk; it is at bottom about fair dealing.

And that is why – months into this scandal – ‘Partygate’ will not go away easily.

Downing Street partied while the rest of us were prevented from going to visit deathbeds or attend funerals, at the behest of Downing Street.

That was unfair.

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The importance of access to good legal advice: how Johnson had only one penalty while junior Downing Street staff had many

23rd May 2022

Some of the best lawyers in the country work for those who often state publicly their disdain for lawyers.

Some of the best media lawyers work for the tabloid press who insult lawyers on front pages and blame them for many social and political ills.

And some of the best regulatory and procedural lawyers help populist politicians and pundits get out of all sorts of scrapes.

None of this is surprising – being part of the tabloid media or being a populist politician or pundit is a high-risk activity.

Such figures will regularly face civil and/or criminal liability in what they want to say or do, but thanks to their good lawyers they are kept safe.

The irony is, of course, that the stock lines-to-take of such figures include ridicule and hostility towards the lawyers who help others.

Those lawyers are ‘activists’ and invariably ‘left-wing’ – some are even ‘human rights’ lawyers.

In other words: the populists dislike lawyers that keep other sorts of people from legal harm, while taking the benefit of lawyers who keep populists safe.

From time-to-time you can see this discrepancy in practical examples.

During the phone-hacking cases, certain publishers took the benefit of outstanding legal advice, while sometimes letting individual reporters and their sources fend for themselves.

And last week we saw the same with the Downing Street parties and the now-closed Metropolitan police investigation.

It would appear that senior Downing Street figures escaped penalties while junior staff incurred them.

And it seems to be the situation that this discrepancy may be because senior figures had the the benefit of deft legal advice in how to complete (and not complete) the questionnaires, while more junior staff provided answers that had  not had the benefit of such advice.

This sort of ‘getting off on a technicality’ would – if it were about migrants or other marginalised group, or loud protesters – be met by emphatic criticism from populist politicians and the tabloid press.

But as it is the leaders of a populist government, then there is hardly a word.

There is nothing wrong with such senior figures having access to competent legal advice.

The issue is not that some have access to good lawyers, but that not everyone does.

Everybody facing criminal liability should have access to the legal advice of the standard that assisted Boris Johnson in ‘Partygate’.

And when you next see denouncements of ‘activist’ lawyers, remind yourself that those denouncements often come from those with ready access to the best quality legal advice, when those that need help from ‘activist’ lawyers often do not.

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Four possible consequences of Partygate

19th May 2022

Partygate, again.

Today the Metropolitan Police announced the end of their investigation.

This means that, in small part, the Partygate issue comes to an end.

But there are at least four things which may now flow from the circumstances of the unlawful gatherings at Number 10 during the pandemic.

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The first, of course, is publication of the Sue Gray report.

This unseen report now has many expectations loaded onto it.

It is useful to remind yourself of her terms of reference.

Whatever is – and is not – in her published report, it is more likely than not to be in accordance with these terms of reference.

It is also useful to remind yourself of her truncated interim ‘update’.

That update indicated – though not in any definite way – where there may be problems for Downing Street when the final report is published (see this blog’s previous post here).

Two paragraphs of the update, in particular, are worth reminding yourself of:

“ii. At least some of the gatherings in question represent a serious failure to observe not just the high standards expected of those working at the heart of Government but also of the standards expected of the entire British population at the time.

“iii. At times it seems there was too little thought given to what was happening across the country in considering the appropriateness of some of these gatherings, the risks they presented to public health and how they might appear to the public. There were failures of leadership and judgment by different parts of No 10 and the Cabinet Office at different times. Some of the events should not have been allowed to take place. Other events should not have been allowed to develop as they did.”

Whether the report leads to any political change – and whether it is, in fact, the timebomb suggested by the earlier post – is, of course, determined by politics and the remarkable capacity of the current Prime Minister to evade accountability.

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The second consequence of Partygate is – on the face of it – potentially more significant constitutionally.

This is the House of Commons committee’s investigation into whether the Prime Minister misled parliament.

Here a difficulty for the Prime Minister is not so much whether he realised the parties he attended were unlawful gatherings, but when he knew.

This is important because, as this blog has previously set out, it appears that the Prime Minister is not only under an obligation to put the record straight, but also to do so at the earliest opportunity.

This point was well explained by Alexander Horne in this thread:

Even if the Prime Minister did not realise at the time the gatherings were unlawful, he no doubt knew once he saw the Sue Gray report and/or was advised in response to the Metropolitan Police investigation.

The committee may perhaps find that Boris Johnson did tell parliament at the first available opportunity, or it may hold the rule somehow does not apply, or it may censure him.

Again, the political consequences of any censure – or sanction – are not predictable with the current Prime Minister.

But misleading the House of Commons and not correcting the record as soon as one can are still serious matters, even in this age of Johnson, Brexit and 2022.

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A third possible consequence of Partygate is the worrying normalisation of politically motivated reporting of opponents to the police.

This blog recently set out this concern – and the concern has also been articulated by newspaper columnists:

This is an issue distinct from the obvious truth that politicians should not be above the law.

This issue is about when there is political pressure for there to be police intervention in respect of opponents, where such pressure would not be applied in respect of one’s own ‘side’.

Unless a report would be made to the police in the same circumstances when it was a political ally rather than an opponent, the report is being made on a partisan basis.

And routine goading of police involvement – and their coercive powers – on a partisan basis is not a good sign in any political system.

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The fourth possible consequence is more optimistic.

The covid regulations were an exercise in bad and rushed legislation, where – even accounting for it being a pandemic – insufficient care was given to the rules imposed and to how they were enforced.

This was pointed out at the time – by this blog and many other legal commentators.

The fact there was a pandemic was used as an excuse for shoddy drafting rather than it being the reason.

And part of the shoddiness was, no doubt, because these were seen by those in the executive as being rules for other people – that is, for the rest of us.

One perhaps positive thing about Partygate is that senior officials, politicians and advisers in the government now are aware that such rules can apply to them.

This may mean that in the event of another pandemic requiring similar rules, the provisions will have more anxious scrutiny before being put in palce and enforced.

That said, of course, it is perhaps also possible that the government will just make sure that future rules expressly do not apply to Whitehall.

But we have to take what possible positives that we can from this gods-awful governmentally-self-inflicted political, legal and constitutional mess, known as Partygate.

**

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The real problem with Beergate – and with Partygate

9th May 2022

There are many ways to look at the ‘Beergate’ political story – about the police investigation into what Leader of the Opposition did and did not do at (or after) a campaign function.

One way is to follow the political soap opera – and to ponder if the Leader of the Opposition will resign if he faces a penalty, if this will then backfire on the government supporters who have made this such a political story, and if voters will get tired and dismiss this and ‘Partygate’ with the shrug that says ‘they are all the same’.

Another way is to anxiously scrutinise the applicable law and to query whether the gathering was for work purposes or not.

And there is a third way, which requires stepping back to wonder if something more significant is going on.

Do ‘Partygate’ and ‘Beergate’ signify a shift in standard political tactics towards using reports to the police of one’s political opponents and encouraging investigations and sanctions?

For it is one thing to campaign against one’s political opponents.

But it seems another to actively seek that they face police attention.

Of course, from time to time – and in a society under the rule of law – politicians will get arrested, prosecuted, convicted and punished.

And that can be in respect of ‘political’ offences – such as regulate electoral matters – or more straightforward criminal activity.

Sometimes such investigations may have potentially important political implications – such as the cash for honours scandal about fifteen years ago, or the more recent parliamentary expenses scandals.

But in each of these cases, the involvement of the police seemed exceptional – and not part of the mundane, day-to-day politicking of Westminster.

And generally it seemed police involvement was not weaponised for political advantage (though there were one or two exceptions of minor Members of Parliament who liked referring matters to Scotland Yard).

Now, however, police involvement could not be more central to politics.

The fate of the Prime Minister and of the Leader of the Opposition depend, in part, on exercises of police discretion.

Not even a court is involved – just decisions of police officers as to whether it is reasonable to believe covid rules were broken.

(It would only become a matter for the courts if those police decisions are not accepted.)

Perhaps all this is just a one-off – just an extraordinary result of intrusive pandemic regulations that are no longer in place.

Or perhaps this marks a shift to using police involvement as a regular aspect of political activity.

So before we get carried away – one way or another – with clamouring for penalties to be imposed on which politicians you like least, perhaps we should think about where this is going.

For it may not be a good place for our politics to go.

**

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The suggestion that the Prime Minister give evidence to the privileges committee under oath and pain of perjury

2nd May 2022

Did you know there is a Parliamentary Witness Oaths Act?

This 1871 statute – which is still in force – provides among other things that any committee of the House of Commons may administer an oath to the witnesses examined before such committee.

And, while an examination of witness by a parliamentary committee is not a judicial proceeding, it would still be perjury for a person to lie such an oath (or affirmation) – with the penalty being up to seven years in prison.

This information comes from a fascinating and informative article at the New Statesman by Alexander Horne, a former parliamentary legal adviser.

In that article Horne contends that such an oath could be administered to the Prime Minister for any evidence he gives to the privileges committee.

If so. this would mean that the Prime Minister would be (to use the glorious legal phrase) ‘under pain of perjury’ to tell the truth to the committee investigating whether he deliberately misled parliament and/or failed to correct the record at the first available opportunity.

(The latter point is where this blog has previously set out that the Prime Minister is vulnerable, for it may be hard for him to maintain that once he had the Sue Gray report and/or any briefing for the Metropolitan police investigation that he still did not realise that he had misled parliament.)

On the face of it, administering such an oath has its attractions.

No sensible person doubts that the current prime minister lies fluently and repeatedly, and so placing him ‘under pain of perjury’ would have the advantage of concentrating his mind wonderfully.

Such an approach would also have the broader advantage of reminding the Prime Minister and others that evidence to parliamentary committees should be taken seriously – especially as the sanction of ‘contempt of parliament’ is, well, held in contempt.

Horne mentions where such oaths have been used:

“Committees rarely administer the oath to witnesses, although it has happened in recent years. The Home Affairs Committee chose to take evidence under oath in respect of its inquiry into child sexual exploitation in Rotherham. The Public Accounts Committee also controversially administered the oath to the general counsel and solicitor to the Inland Revenue in 2011.”

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But.

It may be one thing for witnesses who are not members of either house of parliament to give evidence to a parliamentary committee ‘under pain of perjury’ – but for a parliamentarian and minister to also do so is constitutionally problematic.

That what parliamentarians say in parliament is absolutely protected at law is set out (some would say ‘enshrined’) in the Bill of Rights.

And there is the principle that the responsibility of a minister to answer questions in parliament is politically enforceable (or not enforceable), and not a matter for any form of litigation.

Imagine if the Prime Minister (or other minister or parliamentarian) is caught out in a lie before a parliamentary committee, what would then happen?

(And the 1871 legislation does not expressly provide that parliamentarians are exempt.)

Would an outside court have to adjudicate the conduct of a parliamentarian in respect of parliamentary proceedings?

It is difficult to see how such a prosecution could be easily brought – and it could result in another (for constitutional commentators, splendid) constitutional mess.

And regardless of the legal(istic) issues in this particular situation, there is a sensible wariness of converting political issues into court matters.

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That said, however, it is unfortunate that there is so little that can be done to get the prime minister to give truthful answers in parliament.

This is certainly a constitutional problem that needs a practical solution.

The suggestion of getting a Prime Minister to give evidence to the privileges committee investigating him ‘under pain of perjury’ has the appearance of being such a solution to that problem.

The fear would be that in seeking go solve one constitutional problem, another is caused.

And so the problem remains: what can you do – constitutionally and practically –  with a dishonest Prime Minister?

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POSTSCRIPT

Horne has provided a link to a useful post where he deals with the issues in more detail:

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The false and misleading statements of Boris Johnson and Matt Hancock about the Covid care homes judgment

29 April 2022

On Wednesday the prime minister was asked by Daisy Cooper MP about the high court decision holding that the government had acted unlawfully in its covid guidance for care homes.

Hansard sets out the exchange as follows:

Note that key phrase from the prime minister:

“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was. I wish we had known more about that at the time.”

The former health secretary Matt Hancock gave an interview to ITV News, where he said:

“I wish that the knowledge about asymptomatic transmission had been…had been…I had known it earlier.”

(The switch midway that sentence is interesting – he seems to go from wanting to say that knowledge about asymptomatic transmission had not been known earlier to carefully stating that he personally did not know.)

Hancock then put out a statement to the press as follows:

“This court case comprehensively clears ministers of any wrongdoing and finds Mr Hancock acted reasonably on all counts. 

“The court also found that Public Health England failed to tell ministers what they knew about asymptomatic transmission.”

So: is what the prime minister and the former health secretary said in response to this judgment true?

Let us see.

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The judgment contains evidence about what was said and done, and when.

The evidence does not appear to have been contested by the government in the hearing, though the government’s lawyers would dispute the weight and meanings to be placed on that evidence.

What did the evidence say?

At paragraph 65 of the judgment (emphasis on date added):

“…on 9 March [2020] the Health Minister Lord Bethell, said in the House of Lords that “large numbers of people are infectious or infected but are completely asymptomatic and never go near a test kit.” “

At paragraph 69 of the judgment (emphasis on date added):

“On 12 March [2020] the European Centre for Disease Prevention and Control (ECDC) published a paper entitled ‘Novel coronavirus disease 2019 (COVID-19) pandemic; increased transmission in the EU-EEA and the UK- 6th update.’ It made a number of observations about asymptomatic transmission. It noted that “over the course of the infection, the virus has been identified in respiratory tract specimens 1-2 days before the onset of symptoms…”. Referring to the Japanese National Institute of Infectious Diseases’ field briefing entitled ‘Diamond Princess COVID-19 cases update March 10, 2020,’ it observed that the virus has “been detected in asymptomatic persons. On a rapidly evolving cruise ship outbreak where most of the passengers and staff were tested irrespective of symptoms, 51% of the laboratory confirmed cases were asymptomatic at the time of confirmation”.

At paragraph 73 (emphasis on date added):

“On the morning of 13 March [2020], on BBC Radio 4’s Today programme, Sir Patrick Vallance, the Government’s Chief Scientific Advisor, said this about the means of transmission of the virus:

” “It looks quite likely that there is some degree of asymptomatic transmission. There’s definitely quite a lot of transmission very early on in the disease when there are very mild symptoms”.”

At paragraph 78 (emphasis on date added):

“on 15 March [2020], an important paper from Imperial College and Columbia University was published. ‘Substantial undocumented infection facilitates the rapid dissemination of novel coronavirus’ by Li and Pei et al. discussed the transmission rate of undocumented infection.”

And so on.

The judgment also lists various papers that were published in March 2020, including a paper published on 31 March that stated:

“between a third and a half of transmissions occur from pre-symptomatic individuals.”

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That was all in March 2020 – now let us turn to April 2020.

Paragraph 286 of the judgment:

“On 2 April 2020, a week after the lockdown had been given legal effect (by the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 (SI 2020/350)) , the Admissions Guidance was published. As noted above, this included the following about new admissions (emphasis in the original):

” “Some of these patients [admitted from a hospital or from a home setting] may have COVID-19, whether symptomatic or asymptomatic.  All of these patients can be safely cared for in a care home if this guidance is followed.  If an individual has no COVID-19 symptoms, or has tested positive for COVID-19 but is no longer showing symptoms and has completed their isolation period then care should be provided as normal. … Negative tests are not required prior to transfers/admissions into the care home.” “

The court then states in the next paragraphs about this April guidance:

“there is no evidence that the Secretary of State or anyone advising him addressed the issue of the risk to care home residents of asymptomatic transmission. […]

“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

“It is notable that on 25 and 28 March, days before the publication of the 2 April Admissions Guidance, the Minister for Social Care (Ms Whately) was raising concerns about this aspect of the guidance.

“It was not until 15 April in the Action Plan of that date that the Department recommended both testing and isolation for 14 days for new residents admitted to care homes, whether from hospital or from the community. Such isolation was to be either in the care home itself or using “local authority-based arrangements”, that is to say quarantine facilities.

“This was a significant delay at a critical period.

“We consider that the decision to issue the 2 April Admissions Guidance in that form was irrational in that it failed to take into account the risk of asymptomatic transmission, and failed to make an assessment of the balance of risks.

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And so, as this blog set out yesterday, the court held that the April guidance was irrational in that it failed to take account of a relevant consideration – and at a time where the government was seeking to discharge as many as possible from hospital and into care homes.

This is not about whether the government knew with absolute certainty whether there would be asymptomatic transmission.

But it is about that the government knowing there was a risk before the guidance was issued.

Government ministers and their advisers had spoken expressly of the risk.

Mounting scientific evidence stated there was a risk.

Given that all this can be shown as being known in March 2020, there can be no sensible reason for the April guidance to care homes not to have referred to this risk.

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And now let us come back to the statements from the prime minister and the former health secretary.

The prime minister:

“…we did not know in particular was that covid could be transmitted asymptomatically in the way that it was. I wish we had known more about that at the time.”

The former health secretary:

“I wish that the knowledge about asymptomatic transmission had been…had been…I had known it earlier.”

Both these statements are misleading, and indeed false.

The judgment puts together all the evidence possessed and available to the health department (and the health secretary) at the time.

The passages in the judgment where the court considers the government lawyer’s attempts to explain all this away (paragraphs 272 to 278 and 290) show just how weak the government’s position on this was.

Either the accumulated detail of the judgment of what was known and when – undisputed by the government in court – is true or the statements of the prime minister and the former health secretary are true.

But not both.

The government said it was throwing its protective arms around the care homes at that critical moment, when it was seeking to discharge as many as possible from hospital into care homes.

But the government instead issued guidance that made no mention of a risk that it knew existed – and that can be shown that the government knew existed.

And so people died.

Far from ‘clearing’ the former health secretary of ‘wrongdoing’, the judgment sets out that what was done was very wrong indeed.

**

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How one paragraph in the significant Covid and care homes judgment describes Matt Hancock’s lethal, unlawful policy

28th April 2022

One of the most outstanding lawyers I know works a lot with care home clients.

Sometime ago they told me about what happened when the hospitals started seeking to release patients into care homes at the start of the pandemic.

A hospital was trying to force a care home to take a potentially positive patient.

The lawyer advised their care home client to lock all the doors, and to not accept anyone from the hospital untested.

Robust advice yes – but it was a bleedingly obvious problem – and now the High Court has said, in effect, my friend’s legal advice was correct.

The Covid and care homes judgment handed down this week is long and complicated – 75 pages and 299 numbered paragraphs.

But one paragraph stands out – and goes to the heart of the relationship between policy on one hand and law on the other.

It is paragraph 289:

“Since there is no evidence that this question was considered by the Secretary of State, or that he was asked to consider it, it is not an example of a political judgment on a finely balanced issue. Nor is it a point on which any of the expert committees had advised that no guidance was required. Those drafting the March Discharge Policy and the April Admissions Guidance simply failed to take into account the highly relevant consideration of the risk to elderly and vulnerable residents from asymptomatic transmission.”

This is not an example thereby of a hard policy decision being made between competing options.

Most sensible people would say that is a matter for the government and not for the courts.

It was instead a decision which failed absolutely to take account of a relevant consideration.

As such, it was a policy decision that was not lawfully open to the decision-maker.

As those bringing the case set out, the secretary of state was the relevant decision-maker “and the public law duties fell on him personally to consider relevant considerations, exclude the irrelevant ones and be sufficiently informed”. 

How the court applied this legal principle in this case is interesting:

The court has held, in effect, that by the time the relevant guidance was issued, the risk of asymptomatic transmission was obvious and well-known – it was even being mentioned publicly by government scientific advisers.

But the government blithely put out guidance to care homes that did not even consider that risk, let alone provide for what care homes should have done to manage the risk.

The court elsewhere in the judgment rejects challenges on other grounds – and the court is careful to say that earlier stages of the pandemic, it would not have been fair or realistic for the government to have known that there was a risk.

But by the time of the April 2020 guidance, this was not the case – and the government could not pretend that was the case.

The government instead published guidance on which care homes were supposed to rely and did not care to consider the risk of asymptomatic transmission.

That took the decision out of the realm of administration and policy and into the realm of public law.

The judgment does not refer expressly to the famous Wednesbury principle, but this is an example of a decision so unreasonable no reasonable decision-maker could have made it.

And that is even after giving due latitude and deference to a government dealing with a pandemic – that offers no excuse to have got this guidance so completely – lethally – wrong.

Far from throwing their arms around the care home sector, the department of health instead threw their hands over their eyes.

And care homes should not have been placed in the dreadful predicament of having to decide whether it was safe to follow department of health guidance, or whether they should have locked their doors instead.

**

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Why it will really matter when the Prime Minister realised he had misled the House of Commons – even if his four misleading statements were in good faith

22nd April 2022

As the cliché of American political reporting has it: what did the president know, and when did he know it?

Applying this same sort of question to current British politics, it may not be important so much that the prime minister (says he) did not realise he had misled the house of commons on four occasions, but about when he realised he had done so.

Here we need to look at this Twitter thread by the estimable Alexander Horne:

It will be impossible for any sensible person to believe that the prime minister did not realise at the time he misled the commons that he was lying.

Of course he did.

But – let’s pretend that the prime minister inadvertently misled the house of commons and that he believed in the truth of what he was saying.

Let’s pretend.

At some point between then and this week, he would have come to the realisation that he had misled the house of commons.

That might be when he had subsequent advice and briefings in respect of his evidence to the Sue Gray investigation.

It might have been when he had sight of the Sue Gray report.

It might have been when he had subsequent advice and briefings in respect of his evidence to the metropolitan police investigation.

But it is unlikely that the first time he realised was when he received his (first) fixed penalty notice.

Now, let us turn to a curious form of words used by the prime minister last Tuesday in his statement to the house of commons (emphasis added):

“Let me also say—not by way of mitigation or excuse, but purely because it explains my previous words in this House—that it did not occur to me, then or subsequently, that a gathering in the Cabinet Room just before a vital meeting on covid strategy could amount to a breach of the rules.”

At the time, that the two words “or subsequently” struck me as odd and in need of explanation.

The words did not seem like mere surplusage.

And now, given Horne’s highly useful and informed thread, the meaning of those two words are apparent.

For it is one thing for the prime minister to claim that he did not realise at the time of his four statements that he was misleading the house of commons.

But it is quite another for him to also maintain that he corrected “any inadvertent error at the earliest opportunity”.

At some point between the four misleading statements to the house of commons and last week’s statement, the prime minister became aware that those four statements were not true.

(Of course, he knew at the time he misled the house, but let us continue pretending for the sake of exposition and analysis.)

And if and when the Sue Gray report is published (and/or the briefing given to the prime minister for the metropolitan police inquiry is disclosed) it may become plain that the prime minister did not correct “any inadvertent error at the earliest opportunity”.

Those two words “or subsequently” are going to be doing a lot of work.

For, if it can be shown that even if the prime minister did in good faith mislead the house of commons on each of those four occasions, he also needs to satisfy the privileges committee that he corrected “any inadvertent error at the earliest opportunity”.

And it may be that the Sue Gray report – or other information – may show that is just not true.

Given the powers of the privileges committee, that will not be a comfortable position for the prime minister.

He should brace, brace.

**

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Partygate and parliament: law and policy, tactics and strategy, privileges and penalties

21st April 2022

Well.

Those were an interesting few days in parliament.

We went from a government bullishly seeking to block the prime minister being investigated by the powerful committee on privileges, to supporting the opposition motion.

This government cannot even get political gangsterism right.

Great credit here should go to the opposition parties.

Faced with a law-breaking prime minister who has said – on any view – incorrect things to parliament about the facts relevant to that law-breaking, the opposition could have gone for censure motion, or a confidence motion, or a contempt motion.

And had the opposition done so, it would have been defeated – perhaps on a whipped vote.

But instead the Labour leadership put forward a motion to which no sensible member of parliament could object, and the motion even said any consideration by the privileges committee should await the end of the Metropolitan police investigation.

And the Labour chair of the privileges committee – who had been vocal in his disdain of the prime minister on this issue – said he would recuse himself, thereby removing another possible objection.

Against this tactical savviness, the government position collapsed.

First there was to be an amendment: but that went.

Then the vote was to be unwhipped: and that went.

And in the end, there was not even a vote.

The motion went through on the nod.

Let’s just think about that.

A motion of the house of commons that a sitting prime minister should be investigated by the privileges committee in respect of four statements he made in the house about the circumstances of that law breaking went through – and not a single member of parliament opposed it.

Of course: asking for an investigation is one thing – and the committee may well not find the prime minister in contempt.

But – in and of itself – that such a motion should go through without any objection is remarkable.

One reason for the opposition’s tactical success is that Conservative members of parliament do not want another situation like with Owen Paterson – where they were whipped to frustrate a report, only for the position to be reversed in front of their eyes.

Another reason is that – as this blog has previously averred – a parliamentary majority is no barrier to Nemesis following Hubris.

Other prime ministers in command of working majorities have been brought down before between elections – Thatcher, Blair – and so there is no reason this one cannot be either.

A privileges committee investigation is a serious matter, as they have the power to recommend suspensions from the house.

Another investigation – following the Sue Gray and metropolitan investigations – will also keep this issue alive – and that is, no doubt, the strategic goal of the opposition.

The constitutional Wednesday Addams in any of us can only smile at all of this not going away.

*

What is happening here is – in effect – a parliamentary stress-test, an anxious examination of our constitutional arrangements.

What do you do with a law-breaking prime minister who has misled the house of commons?

Can this be checked and balanced?

The answer to this should not be a civil servant’s report – however independently minded the civil servant.

Nor should it be a decision by the police to issue a penalty, or not.

It is – rightly – a matter for parliament.

And this week’s deft parliamentary footwork by Labour and the other opposition parties has ensured that there will be a parliamentary answer to this particular parliamentary question.

**

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A close look at the resignation letter of David Wolfson QC as Justice Minister

13th April 2022

The justice minister David Wolfson QC has published a letter:

He is (at least) the third senior legal figure to resign from this government in respect of the Rule of Law.

The Treasury Solicitor and the Advocate General for Scotland resigned when the government sought to introduce legislation to enable it to break the law.

And now a justice minister has resigned because cabinet ministers themselves have broken the criminal law (which is the necessary implication of the Prime Minister and the Chancellor of the Exchequer to not to contest the fixed penalty notices) and seem not to care.

*

Wolfson has a very good reputation within the legal profession – and is highly regarded even by those who disagree starkly with his political allegiance.

It is – on any basis – a significant resignation.

But the letter is worth looking at carefully – especially the second paragraph:

These five sentences are perfectly composed and structured.

The first sentence is the general finding of fact: there was not only repeated rule-breaking but also (as rules can sometimes just be for policy or guidance) breaches of the criminal law.

This general finding is incontrovertible – the paid penalties are conclusive proof.

The second sentence then sets out a further finding of fact: the breaches were not merely trivial but were of such a “scale, context and nature” that such conduct cannot pass “with constitutional impunity”.

So not just breaches, but significant breaches.

The second sentence then sets out the factors which go to this significance – that others complied at personal cost, and were prosecuted and even criminalised for lesser breaches.

And, as with the first sentence, what is stated is incontrovertible.

Having established these two conclusions, the third and fourth sentences then distinguish between what happened but also the official response: the implication here is that a more measured official response could have perhaps cured the problem.

But the official response was not measured.

Then having set out the facts, and stated that the official response was deficient, the fifth sentence (somewhat inevitably) then follows – including a deft last stab that the prime minister does not see the problem in the same way.

And the paragraph then ends with the firm stamp of the word “resignation”.

No tiresome “I am resigning because” waffle here – the paragraph ends where other paragraphs would have began.

*

Compare this response with that of another government minister – the Lord Chancellor, who has a recognised constitutional role to defend the Rule of Law:

What in Wolfson’s first and second sentences can this custodian of the Rule of Law disagree with?

Indeed, Dominic Raab’s tweet is no doubt a very instance of the “official response” which Wolfson describes in his fourth and fifth sentences.

Wolfson’s letter and Raab’s tweet are a study in contrast: how to take something constitutionally seriously and how not to do so.

Any minister who professes to care about the Rule of Law – including those who are lawyers – must ask themselves: which part of Wolfson’s letter is wrong?

And if they cannot fault its reasoning or its conclusions they should also do what Wolfson did: resign.

**

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