2nd September 2022
The “opinion”, we were told, would be “devastating”.
To quote the Daily Mail:
“An insider said of the QC’s legal advice: ‘It is absolutely devastating.'”
Not just devastating – but devastating absolutely.
Gosh.
Huge, if true.
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The opinion has now been published on the government’s website.
The government website calls it a “legal opinion”:
And the document itself is formatted and signed as an opinion, and it even records the instructing solicitor, who happens to be a criminal defence specialist.
But the opinion does not set out any views on the criminal law, and nor is it in respect of criminal proceedings, and the authors of the opinion are not criminal lawyers.
Indeed, the opinion does not set out any views on a matter before any court or tribunal, or in respect of any criminal or civil liability.
One could even perhaps doubt – but for (ahem) what the government website says – whether this document constitutes a legal opinion at all.
That it has been placed happily into the public domain would make one wonder if any legal privilege would attach itself to this document.
But.
The question for this post is not whether it is a legal opinion or not, but is it devastating?
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An opinion – which is the name for a document setting out the views of a lawyer on a particular legal matter – is a curious form of legal document.
It is not a pleading or statement of case, which would set out a client’s legal position before a court or tribunal.
Nor is it a statement containing evidence that would set out the facts which a party wishes to put before a court or tribunal.
And nor is it a skeleton argument, which provides a summary of the legal arguments on which a party wishes to rely.
All three of these documents – pleading or statement of case, statement of evidence, skeleton arguments – are court- or tribunal-facing.
They are to assist the court or tribunal in determining the questions before it.
And an opinion is not itself a letter before action, which a party will send to another party so as to set out its case before a claim is issued.
No.
An opinion (or an “advice” depending on the matter) is usually a thing between a client and their lawyer.
The lawyer tells the client their view of the law – and it is to the client that the lawyer has the duty.
Sometimes, such opinions are shared or published by the client – so as to inform or influence third parties.
For example, before he went on to other things, the tax barrister Jolyon Maugham wrote an informative post on how certain tax barristers were well-known for giving convenient advices to be shared:
(Maugham and I are not close, and I am not an uncritical fan of the Good Law Project, but that was – and is – a remarkable piece of legal blogging.)
The point is that such “opinions” are that – they are the views of a lawyer who has an obligation only to their client, even if the client choses to share that document with third parties.
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As such, an opinion is rarely “devastating” – at least, not to any one else other than the client.
It is merely an expression of a view.
No court or tribunal will adopt such an opinion uncritically as its own view – and, indeed, lawyers are required to set their cases in different documents, mentioned above.
There is a fashion for campaigners and pressure groups to commission opinions from lawyers to use as aids for their goals.
And many lawyers are happy to provide such opinions, knowing they are going to be used for such non-judicial purposes.
But such opinions have, by themselves, almost no weight as a legal document.
They are PR, not probative.
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And now we come to this, capital-O Opinion.
This Opinion is, in effect, a PR exercise.
If this Opinion was, in fact, devastating then – in my view – it could have been quietly disclosed to the House of Commons committee of privileges in respect of its inquiry.
The inquiry would then have been devastated.
The content of the Opinion would have been so formidable that the committee would have known the game was up, and they would have terminated the inquiry with immediate effect.
That is what the effect of a “devastating” opinion would have been: devastation.
But this Opinion was not quietly disclosed to the committee.
It was instead placed into the public domain.
On a Friday afternoon.
After it was leaked to a newspaper.
(And although those reading this blog may not be readers of the Daily Mail, the newspaper was right to give this Opinion prominence and to quote the insider – for the Opinion and what the insider said are newsworthy.)
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The publication of this Opinion is an example of litigation by other means.
It is an appeal for media and public support.
It is an attempt to place pressure on the committee to drop the inquiry.
For if the Opinion were truly devastating there would be no need for publicising it on the government website or for leaking it to the press.
That is the difference between something being devastating and something being described as “devastating”.
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The Opinion is not strong.
Indeed, it relies entirely on the “but for” device, which can be one of the deftest rhetorical tactics for any advocate.
The colour of a thing would be black, but for it being white.
The object would be cheese, but for it being chalk.
And here:
“But for Parliamentary privilege, a court hearing a judicial review application brought by Mr Johnson would declare the Committee’s Report to be unlawful.”
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There are a few points to make about this Opinion.
To begin with, the inquiry into whether Boris Johnson misled the House of Commons is a matter for Parliament and not the courts.
And Parliament is in charge of its own procedures which, as a matter of basic constitutional principle (and the Bill of Rights), cannot be gainsaid by the courts.
So to say “but for” this being a parliamentary matter it would have this judicial consequence is to disregard perhaps the most fundamental part of our constitutional arrangements.
But.
It gets worse.
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The Opinion does not even deal with the alleged wrong of Johnson not promptly correcting the record when he realised Parliament had been misled than him misleading parliament in the first place.
This has been spotted by the Labour MP Chris Bryant:
The motion referring Johnson to the privileges committees was as follows:
The question for the committee is whether the misleading of the House of Common amounted to a contempt.
If Johnson did in good faith give an incorrect statement then at some point he would have realised the error.
That would not be a contempt.
But.
Under the rules of Parliament (and the Ministerial Code) Johnson was also under a duty to correct the record as soon as he realised, at the “earliest opportunity” and he has chosen not to do so.
Here is Erskine May, the authority on parliamentary procedure (highlighting added):
On this, see this thread by Alexander Horne from back in April:
And my post on the same:
There is no good reason why this “earliest opportunity” point is not fully addressed by the Opinion.
The Opinion mentions the relevant duty in paragraph 26 (and the corresponding Ministerial Code duty in paragraph 28) but uses it only to somehow say that it indicates only deliberate lying can be contempt.
But if this a point set out in Erskine May, and obvious to Horne (and me) in April 2022, then it is a point that should have been addressed in an Opinion dated 1 September 2022.
As it is, the Opinion offers no defence whatsoever to the “earliest opportunity” charge.
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The Opinion is also odd in how it seeks to judicial-ise parliament.
This has already been spotted by the estimable Hannah White:
This contempt inquiry is a parliamentary (and political) exercise into assessing whether Johnson was dishonest.
This process is required because of the notion (or fiction) that MPs do not lie to the House.
This is because it is assumed MPs are honourable – and it is out of order for one MP to accuse another of lying in the Commons.
Ministers, for example, do not sign “statements of truth” when giving their answers at the dispatch box.
(And you will remember that Johnson lost the prorogation case at the Supreme Court because he refused to sign a statement of truth, under pain of perjury, as to his true reasons for the prorogation.)
As such the privileges committee inquiry is part of what some commentators call the “political constitution”.
It is how certain issues and disputes are dealt with within parliament, rather than outside of parliament by courts or other agencies.
The Opinion, by seeking to judicial-ise part of the process is taking a misconceived pick-and-mix approach.
The committee has set out its process and has called for evidence:
A motion was passed by the Commons; a process was adopted in accordance with the relevant rules agreed by Parliament; documents have been sought and evidence has been called for.
This is entirely appropriate for the parliamentary issue which needs to be addressed and resolved.
If the committee were to be amenable to judicial review, then the entire process would cease to be an entirely parliamentary matter.
The whole process would have to be recast, with judicial protections built in at each stage.
And, in any case, there is no good reason – and certainly no reason set out in the Opinion – why Johnson cannot simply explain why he gave a misleading statement and did not correct it at the earliest opportunity.
He can answer, parliamentarian to parliamentarians.
The motion of the House gives precise particulars of the statements, and he was the one that made the statements.
The sanction, if he is found in contempt, is not civil or criminal liability – no criminal record or county court judgment – but a sanction to him as a parliamentarian – he could be suspended, or perhaps face a recall petition.
This is a parliamentary process to deal with a parliamentary question with a possible parliamentary sanction.
To assert that “[b]ut for Parliamentary privilege, a court hearing a judicial review brought by Mr Johnson would in our view declare the approach taken by the Committee to be unlawful” is therefore not just deft, it is also daft.
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As a further observation: why has this matter not seemingly gone through the government legal system and treasury counsel?
It appears a top white-collar criminal firm and the barristers have been instructed directly by the Prime Minister, presumably with public money.
For all Johnson’s derision about “lefty lawyers” and his supporters’ attacks on legal aid “fat cats”, Johnson is very ready to use taxpayer money to find technicalities so as to frustrate processes.
Those caught in the criminal justice system do not have access to this sort of legal advice.
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To conclude: the Opinion is not only not strong, it is a disappointment.
One would hope and expect that its esteemed authors would have provided a more compelling critique of the process; that they would have engaged with the “earliest opportunity” charge; and that they would have explained, in parliamentary terms why it was unfair, rather than relying entirely on a “but for” rhetorical device and a false analogue.
This could have been a far more interesting opinion.
But instead, we got this weak, misconceived, incoherent document.
Frankly, it is devastating.
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POSTSCRIPT
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