Johnson at the Privileges Committee – a post-hearing analysis

22 March 2023

The first thing to note about the appearance of Boris Johnson at the hearing today of the committee of privileges is that how little difference it will probably make to the committee’s report.

This is because the bulk of the report will be based on documentary evidence and the written evidence of other witnesses.

On certain points there is the possibility that the oral evidence of Johnson may make a difference – where it will rebut or even refute what the evidence would otherwise point to.

This is to be expected – and it can be compared with civil litigation where the respective merits of the parties’ cases can often become plain on disclosure of documentary evidence and the exchange of witness statements, long before any actual trial and cross-examination.

As such, today’s hearing was not an all-or-nothing gladiatorial bout.

For, as far as the committee’s report is concerned, what Johnson had to say may only have marginal importance, and on some points his evidence may make no difference at all.

Instead, and as this blog averred would be the case yesterday, Johnson gave the impression that he was playing to other audiences – that of his fellow parliamentarians (who would have to decide on any sanction) and to the media and the public (who would aid him in placing pressure on parliamentarians).

His combative and sometimes even confrontational performance makes no sense if you see it as an attempt to shape the committee’s report – but it made a lot of sense in his objectives to discredit the committee and any adverse report, and to frame himself as a victim.

Unfortunately for his strategy and tactics, he fell flat on at least a couple of occasions, including when he indicated that he would only accept the committee’s findings as fair if he was cleared.

No doubt if he is “cleared” he will hold the committee up as an exemplar of fairness and thoroughness.

And this will not be the first time he has wanted his cake and to eat it.

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Long term followers of this blog and this story may recall that it was observed last year that the “showing leadership” formulation was highly successful in heading off fixed penalty notices from the police.

At a stroke Johnson had a plausible explanation for being at almost all the gatherings – even thought those also attending got the penalties.

The only gathering for which that explanation could not work was for his own birthday, and so that is why he perhaps got a penalty for that and not any other gatherings.

I do not know if that theory is true, but it so far matches the facts better than any other explanation.

Today showed that Johnson is fully into his stride with the “showing leadership” explanation for his attendance at the gatherings.

The problem, however, is that a defence for his attendance which works with the police for breaking the criminal law does not necessarily work as an excuse for whether he knew the gatherings generally would be against the non-legal guidance.

It may well be that the price of heading off more than one fixed penalty notice is that Johnson now has no real answer to the hard questions of this committee about what he would have known at the time.

Johnson also had no real answer today to where some commentators think he is most exposed – his failure to correct the record as soon as he realised what he said was not correct.

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Nobody knows what the committee will decide – and, if they say Johnson is in contempt, what the House of Commons will determine as any sanction.

The committee may still find that Johnson made those statements in good faith and that he corrected the record in a timely manner – even though the other evidence points to a breach of privilege.

Perhaps.

But whether the “greased piglet” gets away (again) without serious sanction may be determined by the audiences to whom Johnson was playing today.

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The submission of Boris Johnson is a document of wonder and delight, but it should not be taken seriously for its supposed primary purpose

 

Today the privileges committee of the House of Commons published the latest submission of Boris Johnson.

Nobody takes this submission seriously, at least not for its supposed primary purpose – that of being the solemn defence of Johnson against the charge of culpably misleading the House of Commons (and/or not correcting the record in a timely manner).

Nobody, including Johnson himself and the clever wordsmiths who crafted the arguments in the document.

The document, however, may have a number of secondary purposes.

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First, there is the political and personal strategic purpose of Johnson at the end of the process being able to claim that he has been “cleared” and “exonerated” regardless of whether he is actually cleared or exonerated.

Here Johnson may have already written off the committee report, and he realises some culpability will be found.

And so what Johnson is looking at is how this document can frame what is happening for what then follows, especially any vote of the House of Commons on sanction.

If he can, for example, say that the committee accepted he acted “in good faith” but that he should have corrected the record sooner then he can say he has been “cleared” and “exonerated” even though the committee finds him in breach because of his correction.

As such he is working backwards from the tale he wants to tell after the committee reports.

(If the submission works so that he is not found in breach, then all the better – but he knows the evidence against him is compelling.)

If he makes it as difficult as possible for the privileges committee to land a clean blow against Johnson on “good faith” at the time the House was misled, then he may escape any significant sanction.

Johnson then “wins”.

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Second, there is the tactical purpose of framing the ongoing narrative of this story on terms favourable to Johnson.

He is sending signals to his media and political supporters, some of whom are happily repeating his talking points and believe Johnson to be some sort of a victim.

This spin maximises his political space for manoeuvre: he retains political support and (somehow) the benefit of the doubt of some who should know better.

This submission helps Johnson in defining the charges against him on his own terms, rather than on the committee’s terms: Is the committee being unfair? Did he act in good faith?  Hasn’t he apologised for what was on his watch?  And so on.

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Third, a long submission like this may have the purpose of justifying the considerable amount of public money spent on Johnson’s defence.

If Johnson had one strong basis for defence, a few pages would be enough, perhaps even one page, perhaps even one paragraph.

But as a general rule: the longer the litigation letter, the weaker the case.

This is 52 pages.

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And fourth (and here I am being playfully ironic), this document is a wonderful example of public art.

The amount of public money spent on this document could have been wasted on some drab statue or earnest mural, but here we have instead a thing of beauty.

Almost every sentence of this submission – almost every sub-clause – is a delight to be cherished, demonstrating real craft.

Take for example:

“the Committee did not identify a single document which suggested that I was informed or warned by anyone that any event at No. 10 was contrary to the Rules or Guidance”

Just take a moment to think about that, just as you would take a moment to ponder a clever detail in a painting or a poem.

And then you have the happy realisation that this could be said by almost any person facing any sanction at any time.

I did not wrong, the accused person could say, because I was not informed or warned that what I was doing was wrong.

Of course, Johnson like the rest of us during the pandemic were expected to know the rules and guidance for themselves – and. if not, we could always listen to the then prime minister Boris Johnson at one of his press conferences telling us about the rules and guidance.

There are many, many more such sentences.

This masterwork of a submission, full of artificial beauty, should not just be a submission to some parliamentary committee.

It should also be submitted to the Turner Prize.

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Will this submission serve the interests of the greased piglet?

Will it help him in anyway?

Will he be, with one leap, be free from serious sanction – again?

This submission shows how such an escape can happen – as long as you do not take it seriously as an actual defence.

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Ten thousand greased piglets

20th March 2023

This may be quite the moment for the interplay of politics and process.

We have this week the former prime minister Boris Johnson facing detailed questions before the privileges committee.

We also have the deputy prime minister and lord chancellor Dominic Raab facing the outcome of an inquiry conducted by a senior barrister.

We have rumours that former president Donald Trump is about to be arrested.

And last week we even had an arrest warrant for Vladimir Putin.

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These are not equally momentous, but they do have two things in common.

First, each of these are examples of politicians being held to account but not in any usual way: each is unusual.

The nearest to a normal political process is Johnson being examined by fellow members of parliament before a parliamentary committee: but he may have to evidence on oath, and the story of this inquiry is already packed with legal and media attacks and manoeuvring.

The inquiry into Raab is also not formally legalistic – but it is lawyer- and evidence-driven.

While Trump and Putin may face formal judicial proceedings.

Second, each of these processes features a mode of evidence-based questioning or inquiry that is structured so that the probing is difficult to evade or ignore.

And this is because politicians are adept at evading or ignoring questions.

In other words: politicians are good at not being accountable – that is, literally, at not giving an account of what they have done.

Normal political processes of accountability have in each of the examples failed – or in the case of Putin, never really existed.

And so resort is being made to forms of questioning and inquiry that are harder to evade or ignore.

Some may think that a law and policy blogger would applaud this: for at last there will be hard examinations that cannot easily be deflected.

But, no.

And this is because legal and political processes should be distinct and separate.

Instead of this being a triumph of the forensic method, it is a failure of the political method.

This is not a good thing.

Every lurch towards extreme parliamentary processes (Johnson), non-parliamentary processes (Raab), and judicial processes (Trump, Putin) is an implicit admission of the failure of political processes to check and balance those with political power.

Yes, some of these events may end up with striking political theatre.

And it may well be that such formal processes are the only way to deal with politicians who share the famous description of Johnson as a “greased piglet”.

But this shift is not a good thing on scale.

For soon we may go from a handful of greased piglets to hundreds if not thousands, with normal forms of accountability finally being accepted as redundant.

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An Arrest Warrant for Vladimir Putin

17th March 2023

Today an arrest warrant was issued for the arrest of Vladimir Putin.

This warrant was issued by the International Criminal Court.

On the face of it, the jurisdiction of that court in this matter is not obvious.

Neither Russia nor Ukraine are signatories to the Rome Statute, which established the International Criminal Court and provides for the jurisdiction of the court.

(And nor are, for example, the United States and Israel.)

But it seems that not being a signatory is not a barrier.

According to the court’s site, “Ukraine is not a State Party to the Rome Statute, but it has twice exercised its prerogatives to accept the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory, pursuant to article 12(3) of the Statute”.

It would appear that a mere declaration – as distinct from signing, let alone ratifying, the Rome Statute – is enough to confer jurisdiction.

Article 12 of the Rome Statute provides:

One can see how this joins the legal dots so that there is jurisdiction for a warrant to be issued.

Somewhere there is, no doubt, a paper copy of Article 12(3) with a big tick next to it.

But this, of course, will not be enough for the Russians to cooperate.

There is currently zero chance of Putin being arrested.

This should not surprise us.

For, unlike equity, international law often acts in vain.

In large part, that is the point of international law – to provide international standards even if those standards are not met

And the politics in Russia can change.

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By coincidence, the last week also saw the 103rd birthday of the last surviving Nuremberg prosecutor, Ben Ferencz.

One of the convictions secured by Ferencz was for an SS officer responsible for mass murders in Ukraine.

That mass murderer was hanged.

All Putin would face is imprisonment.

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The basis for the warrant for Putin is the forced deportation of Ukraine children.

This is a serious matter – but it is, of course, not the only war crime for which Putin is responsible.

It is, however, one of the easiest to evidence – and, indeed, it would appear the facts of the deportations are not disputed.

As such it has a flavour of Al Capone and tax evasion – a prosecution that is evidence-led and thereby more likely to reach a more advanced stage procedurally.

Presumably an arrest warrant needs a sound evidential base, and the forced deportation of Ukraine children provides the requisite evidence.

This certainly not to underplay the importance of the child deportation issue – it is more of an illustration that any practical prosecution will always be a balance between law and evidence.

Perhaps further grounds can be added in due course.

But if this prosecution has any chance of success, then at this early stage doing-it-by-the-evidence as well as doing-it-by-the book is prudent and admirable.

This prosecution may not get any further – but, if it does, it will be in part because the prosecution was properly thought-through at its early stages.

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The failure of Brexit to return real power to Westminster: a worked example

16th March 2023

Yesterday this blog averred that Brexit so far has been about giving power to Whitehall than giving power to Westminster.

Ministers since 2016 have been using the rhetoric of “taking back control” so as to make government less accountable to parliament.

And today: a worked example:

You may have strong views about Brexit, and you may have strong views about the Windsor Framework.

(This blog has set out why, although the Windsor Framework is a Good Thing, the supposed ‘Stormont Brake’ is more likely to be an ornament than an instrument.)

Yet sensible people would want the Windsor Framework to be be properly considered and scrutinised by parliament.

For that is what sovereign parliaments should be able to do.

But, no.

The government is not giving parliament any adequate opportunity to examine the Windsor Framework.

This is more government by fiat, by ministerial decision.

You may think that is a Good Thing: that our government should be all-powerful between general elections with no or almost no accountability to parliament.

But, if so, do not pretend to others that Brexit was ever about giving power back to the Westminster parliament.

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Whitehall is the new Brussels – and Westminster is as weak as ever

15th March 2023

There are many things which were not true about Brexit.

Brexit was never going to be quick and easy: indeed, we were still this year re-negotiating the exit deal.

Brexit was never going to lead to a rush of new free trade deals.

Brexit was never going to make it easier for the United Kingdom to control its borders.And Brexit was not about reclaiming sovereignty: we had sovereignty all along, and that is how we were able to make the Article 50 notification.

But the untruth about Brexit which perhaps is the most irksome from a law and policy perspective is that it was about the Westminster parliament (re)gaining power from Brussels.

For what has happened instead is that Whitehall – that is ministers and civil servants – used Brexit as a pretext for its own power-grab.

There is a version of Brexit – unrealistic, of course – where parliament is given maximum powers over new trade deals and where parliament decides on a case-by-case basis which of the retained European Union laws it keeps or replaces.

A Brexit which was used to empower Westminster and our democracy.

In some ways – and this will annoy some of you – that would not have been a bad Brexit.

But the rhetoric of “taking back control” instead cloaked an increase in discretionary and unaccountable power by the government.

The Westminster parliament seems as powerless as ever against the executive.

Whitehall has become the new Brussels.

And we may have to “take back control” all over again.

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The foreign policy of the United Kingdom is improving, while the domestic policy remains clownish or cruel

14th March 2023

If one tries to look objectively at the current government of the United Kingdom as a government then a balanced view would say that it was doing certain things better than others.

In foreign policy, for example, the government is beginning to look almost normal.

Here is a former senior official at the foreign office:

And this thread is very interesting on that integrated review.

But.

But, but, but.

In domestic policy the government is still either clowning around and/or being cruel with its culture war stuff.

The illegal migration bill is being forced through parliament without any proper scrutiny.

The outstanding Dr Hannah White of that fine squadron of analysts at the Institute of Government has set out the dangers of this reckless speed – and how it is becoming too common a feature of modern legislation.

It does not need to be this way.

And the new almost-normality of the international policies of the government shows that the government is able to shift its approach – when it wants to do so.

Unfortunately the government ministers in charge of domestic policy appear to be wedded to culture war antics because they cannot think of anything else to do.

Yet, it is not inevitable – and perhaps the government will drop this and other awful Bills – on retained EU law and the Bill of Rights – as well as dropping the ministers who promote such bills.

Perhaps.

It is unlikely, of course – but then a few months ago, it seemed unlikely we would have a grown-up approach to foreign policy.

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The BBC and impartiality – a sideways glance from the courtroom

13th March 2023

What follows is an analogy – and all analogies in human affairs are inexact, and this is because no two situations involving people are identical absolutely.

If your mind starts racing along the lines of “they are not the same” – I agree, and I can think of many points of contrast too.

But bear with me, as the points of comparison may be interesting and even thought-provoking.

(And any comments underneath which just list differences will probably not get through moderation.)

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Imagine a court judgment – in a civil case where there has been a trial.

That there was a trial implies there was more than one side – and this in turn means that on at one least issue there was a difference of view.

Imagine reading that judgment.

The judge sets out the applicable law.

If there is a dispute as to the applicable law the judge sets out the submissions of the parties and why one view of the law was preferred instead of another.

(Sometimes a judge may provide their own view of the law and why that is to be preferred instead of the views of the parties.)

If there is a dispute as to the applicable facts then the judge will often set out why the evidence of one party was to be preferred to another.

If the factual dispute is complex then a good part of the judgment will be devoted to setting out why one set of facts was preferred to another – whether the evidence is witness evidence, or in the form of exhibits, or contested expert evidence.

And the judge is required – by the rules of natural justice no less – to decide the dispute impartially and having given each side a fair hearing.

What the judge will not do – even though they are duty-bound to be impartial – is to treat both sides as having equal weight and not make any material decisions at all.

This is because the obligations of impartiality and to hear each side go to how the judge approaches their task of exercising their judgement, rather than being reasons to not make any evaluation at all.

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Now let us turn to the BBC.

The BBC charter provides (among other things) that the purpose of the corporation is “to provide impartial news and information to help people understand and engage with the world around them: the BBC should provide duly accurate and impartial news, current affairs and factual programming to build people’s understanding of all parts of the United Kingdom and of the wider world. Its content should be provided to the highest editorial standards.”

The charter also states “the BBC should provide high-quality news coverage to international audiences, firmly based on British values of accuracy, impartiality, and fairness”.

And:

“The Mission of the BBC is to act in the public interest, serving all audiences through the provision of impartial, high-quality and distinctive output and services which inform, educate and entertain.”

Under section 319 of the Communications Act 2003, the Ofcom code must ensure “that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with”.

Section 320 of the same Act provides that the impartiality requirements include “the preservation, in the case of every television programme service, teletext service, national radio service and national digital sound programme service, of due impartiality, on the part of the person providing the service, as respects all of those matters”.

The 2022 framework agreement between the government and the BBC provides that the BBC board should “ensure in particular that any such guidelines set appropriate standards to secure the fairness, due impartiality, due accuracy and editorial integrity”.

You get the message.

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The obligation of “impartiality” is as (ahem) enshrined in the instruments that govern and regulate the BBC as much as they are for any judge.

But impartiality does not necessarily mean facile both-sides-ism.

For these instruments also refer to the following (emphasis added):

“The BBC must be independent in all matters concerning the fulfilment of its Mission and the promotion of the Public Purposes, particularly as regards editorial and creative decisions […]” (The Charter)

“the desirability of maintaining the independence of editorial control over programme content“ (section 319 of the Communications Act)

“The UK Government will continue to recognise and respect the editorial, creative and operational independence of the BBC, as set out in the Charter.” (2022 framework agreement)

And so on – there are many more.

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None of the instruments that govern and regulate the BBC provide that impartiality should mean an absence of editorial judgment.

Indeed, for like a judge who approaches their task with impartiality, the editor of a news programme also should exercise their editorial judgement with impartiality.

But there is still an exercise of judgement.

Impartiality – at least in the courtroom – does not mean that each side should be treated as being equally compelling.

And it should not in a newsroom either.

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The prehistory of referendums in the United Kingdom – this week’s Substack essay on legal history

11th March 2023

Over at my Substack, this week’s essay on legal history for paying subscribers is on the prehistory of referendums in the United Kingdom.

The essay begins as follows:

For Philip Larkin a certain kind of intercourse began in 1963 – between the Lady Chatterley obscenity trial and the Beatles’ first LP.

Similarly referendums can appear to have started, at least in the United Kingdom ten years later in 1973 – not long after the Oz obscenity trial and the Beatles’ last LP.

For 1973 was the year of the border poll in Northern Ireland, which is usually considered to be the first referendum in the United Kingdom; and 1973 is also the year that the United Kingdom joined the European Economic Community (EEC), the membership of which was then to be subjected to a referendum in 1975.

For many of us in 2023, fifty years later, the most notable referendum was the one in 2016 on whether the United Kingdom should depart the successor to the EEC, the European Union.

Others are preoccupied with other referendums. Some are seeking a further Scottish independence referendum, to reverse the result of the result of the 2014 vote. And there is also the real prospect of a further border poll in Northern Ireland which may, in turn, lead to Irish unification.

Our recent politics are dominated by one referendum in particular, and the future of the United Kingdom itself may depend on two referendums yet to come.

And this is in addition to the referendums which led to the current devolved settlements in Scotland, Wales and Northern Ireland, all of which are now fundamental parts of our constitutional order.

But there was once a time before any of these referendums had been mooted or taken place or were even contemplated.

A time when 1973, and what then followed, was decades in the future.

And so this essay tells the story of the early history of referendum issue in the constitutional and political affairs of the United Kingdom.

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You can read the rest of the essay here.

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These essays are on topics to do with legal history and legal lore – and they are in addition to my free-to-read topical law and policy commentary here and at Substack every weekday.

Other essays include:

The lore of Lady Justice.

Dr Bonham’s case (1610) – and the question of whether parliament is really sovereign.

The 1712 case of Jane Wenham and the last of the English witch trials.

Taff Vale (1901) – perhaps the most important case in trade union history.

Wednesbury (1948) – the origin of the modern principle of legal unreasonableness.

Malone (1979) – perhaps the most significant constitutional case of the last 50 years.

How the courts improvised legal solutions in the hard case of George Blake between 1990 and 2000.

When William Rees-Mogg and James Goldsmith in 1993 asked the courts to declare that the United Kingdom could not ratify the Maastricht Treaty

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If you are not yet a paying Substack subscriber, please consider becoming one.

The subscriptions help support my daily free-to-read law and policy commentary on this blog.

Those of you who are Patreon supporters can read the essay here.

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Libraries and books

10th March 2023

I recently spent a few days in some wonderful, world-famous academic libraries, and I noticed two things different from when I was an undergraduate a few decades ago.

The first was that the library was full of working students and researchers – packed – with either almost no or no desks available.

This, on the face of it, is a good sign.

In the early 1990s I remember the same libraries being fairly empty, and you could have a whole row – sometimes a whole room – to yourself, and not just a desk.

Libraries are (ultimately) instruments and not ornaments, and so they ought to be busy and not empty.

But.

If you looked carefully, you also noticed that almost none of those working in the libraries were using any of the books from the shelves or from the stack.

Indeed, almost every student and researcher was working on a laptop (or at least staring at one).

A librarian explained to me that while they are delighted that libraries are being used more than before, they are sad that it rarely for any of the library stock.

It was more about ambiance, it seems: the librarian mentioned that students say they work better when surrounded by books, even if they are not using any.

The reason I was there was to look at some volumes from the shelves or brought up from the stacks – books which one could not get anywhere else.

And so I waited with my pile of books for a desk to become free.

And waited.

Standing there, with nothing more advanced than a pad of A4 paper and a pencil case, feeling like a dinosaur or time traveller; wondering about the paradox of book-lined libraries being more used than before, but with the books themselves as ornaments, even if the library was itself being used as an instrument.

And then I realised I was just as “culpable” – for in the olden days, one would have written a letter to a newspaper or made a private journal article about such an observation – and I am posting an electronic blogpost instead.

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