Speech on the floor of the House in the debate on the Privileges Committee's Fifth Report - Privilege: Conduct of Right Hon. Boris Johnson - Monday 19th June
I gave my reasons for voting against the Committee of Privileges' Report in my speech on the floor of the House of Commons on Monday 19th June as follows.
Sir William Cash
"The original motion, which was discussed on the Floor of the House on 21 April 2022, in which debate both I and the hon. Member for Rhondda (Sir Chris Bryant) happened to speak, should never have been allowed through by default, as I said at the time. I cannot understand how it happened and I have never had a proper explanation. What I do know, as I said earlier to the hon. Member, to others and to the Chair of the Committee, is that it uses the word “misleading” but not the words “knowingly misleading”. There is a vast difference. It is about intention. It is about whether or not Boris Johnson could have lied. That is the crucial issue.
I put down an early-day motion immediately after the Privileges Committee produced its process report, on 21 July 2022. The Committee itself drew attention, as I have, to the divergence from the established convention of deliberately or knowingly misleading the House—I made that point; I am afraid the Committee did not—as set out in the unanimously agreed 1997 resolution of the House on ministerial accountability. My motion therefore called for the 21 April motion to be rescinded. I have not changed my mind, especially as the proceedings have unfolded. My concern is also that the procedure followed has pursued a course that could even tend to undermine democratic and ministerial accountability because that is contained in, fundamentally, a unanimous resolution of 1997, which is still very much alive and kicking. Every day, the words “knowingly misleads” apply to Ministers who speak from the Dispatch Box. It was well said by the great constitutional lawyer Maitland that
“justice is to be found in the interstices of procedure.”
Thus, the procedures should reflect natural justice and the right to fairness in proceedings. I know that the Chair of the Privileges Committee has chaired the Human Rights Committee. One of the most fundamental Toggle showing location of Column 623questions in relation to the Human Rights Act 1998 and the European convention on human rights is fairness in proceedings and trials.
The Committee of Privileges is uniquely concerned with personal accusations and complaints, as compared with all other Select Committees, which concentrate largely on departmental policy. Natural justice therefore requires cross-examination by counsel. The rule of law requires that, where there is an accusation of misconduct or of lying, particularly by Members of the House, an individual should be entitled to have his counsel cross-examine the evidence and obtain the names of potential witnesses. Indeed, counsel can be heard in person with the leave of the House and I truly believe that the Committee of Privileges could and should have proposed that itself.
I have already dealt with the question raised earlier with respect to the admission. I pay tribute to the hon. Member for Rhondda for saying in the debate on 21 April 2022 that “intention” is essential. I am glad that he reconfirmed that point today. In my view, intention cannot be excluded by any presumption of strict liability. That, as I understand it, was considered by the legal adviser to the Committee and he came to the view that strict liability applied. I do not agree, but that is a personal view and it is a view that I take as a lawyer. I do not think that strict liability is consistent with ensuring that the word “intention” is applicable in such circumstances.
Only by cross-examination of witnesses can truth be properly established. The 1997 resolution went through unanimously after a series of many Select Committee reports in the 1990s following the arms sales to Iraq saga. There were intensive cross-party discussions and, eventually, John Major and Tony Blair insisted on the words, “knowingly misleads” in the resolution that was unanimously passed; the House agreed to it. That resolution, as I have said repeatedly, prevails to this day. Therefore, no Minister shall be expected to resign, or be forced to resign, unless that can be proved.
The motion of 21 April deliberately left out the word “knowingly”. It was a Labour bear trap for Boris Johnson and the Government. Changing this fundamental principle through a new precedent would, in my view, affect all Governments and democratic accountability in future, and would, incidentally, apply to civil servants, who are also governed, under the civil service code of conduct, by the words “knowingly misleads”. They are the people Toggle showing location of Column 624who have to put together the answers to the questions that are raised on the Floor of the House and, for that matter, in speeches, too... I am making the point that, as far as I am concerned, there is an issue here that is being debated. Many people are absenting themselves for what they believe to be very good reasons. I am simply taking the view that somebody may decide that they are going to divide the House and I am leaving that as an open question for the time being. However, the statements made by Boris Johnson on the Floor of the House... The statements made by Boris Johnson on the Floor of the House were in fact about legal interpretation of the covid rules and the guidance in respect of No.10. The Justice Committee conducted an excellent inquiry, reporting in September 2021, on the meaning and effect of the covid rules and guidance, several months before partygate emerged as an issue. That report is of great importance because it endorsed the incisive legal analysis of the former counsel for domestic legislation, the present Parliamentary Commissioner for Standards. He highlighted the legal uncertainty of the regulations and guidance, stating in evidence to the Committee that
“there has been a lack of clarity as to what regulations applied to specific situations at what times…The combination of regulations and guidance, and the lack of clarity as to where one starts and the other stops, have been recurring themes of the coronavirus regulations.”
I strongly recommend that Opposition Members listen to that. It is very important in deciding whether a person can lie in those circumstances, because the same applied to subsequent regulations. The Parliamentary Commissioner for Standards emphasised that that lack of clarity undermined the rule of law. That could not have been more apparent than in the differences in approach between that of the Durham police authority on the Barnard Castle incident and that taken in relation to the Leader of the Opposition and beer drinking at a particular event, which led to no action and, on the other hand, the Metropolitan police in relation to No. 10, which did lead to action. The essential point about all of this is that no one, not even the lawyers, knew what the law was. The Parliamentary Commissioner for Standards made that crystal clear. Even the civil servants who drafted the regulations were fined for non-compliance. Toggle showing location of Column 625
I now come to the fundamental issue of whether Boris Johnson can be accused of knowingly lying to the House. It is clear from what I have said that the accusation that the former Prime Minister had deliberately or knowingly misled that House, as set out in the current and existing 1997 resolution, put together by Tony Blair and John Major and endorsed unanimously by the House as a whole, can only be derived from a proper legal interpretation of the words on which Boris Johnson was relying and of the legal advice he had received inside No. 10 on each occasion on which he is accused. I find no publication of that legal advice in this report. Boris Johnson therefore, in my view, cannot have been found guilty of knowingly misleading Parliament if no lawyers, let alone the Prime Minister, who is not a lawyer, could get the legal position right. The regulations and the guidance entirely lacked legal certainty. Therefore the Prime Minister could not have knowingly misled the House.
Why, as I believe to be the case, did the Committee not obtain evidence from those lawyers in No. 10 who provided legal advice when it was so crucial? If it did, why has that evidence apparently not been published? Boris Johnson cannot therefore have knowingly misled the House, and that should have been the end of it. I do not see how contempt can be attributed in these circumstances, for he simply could not have knowingly misled Parliament on any rational interpretation of the word “knowingly”, which the original motion left out.
Those who argue that now the report has been published it is all over and done, and those who say that the dogs bark but the caravan moves on, miss the wood for the trees. The caravan of this House, having moved on, will certainly come back. Then the dogs will not merely bark, but they will bite, and Parliament will be the victim, and it is likely that any future Labour Government will get caught up in it—although heaven forbid one should ever be elected. I therefore do not approve of this motion."
Link to full debate: Privilege: Conduct of Right Hon. Boris Johnson - Hansard - UK Parliament