As is well known, the Committee of Privileges is currently holding an inquiry into whether the Prime Minister committed a contempt of Parliament when addressing the House of Commons in relation to matters concerning ‘Partygate’. To a report published on 21 July, the Committee appended a memorandum from its legal adviser, Sir Ernest Ryder, concerning matters of procedure and a paper from the Clerk of the Journals on the notion of contempt. Today saw the publication on the UK Government website of a legal opinion written by Lord Pannick and Jason Pobjoy of Blackstone Chambers concerning the same matters: namely, the definition of contempt and the process that the Committee is to undertake. In this post, I respond briefly to two matters arising from that legal opinion.
A good deal of the opinion is devoted to consideration of whether the Committee has adopted an overbroad definition of contempt. Erskine May, the bible of parliamentary procedure, holds in paragraph 15.2 that
any act or omission which obstructs or impedes either House of Parliament in the performance of its functions, or which obstructs or impedes any Member or officer of such House in the discharge of their duty, or which has a tendency, directly or indirectly, to produce such results, may be treated as a contempt even though there is no precedent of the offence.
Erskine May goes on to conclude that it is ‘impossible to list every act which might be considered to amount to a contempt, as Parliamentary privilege is a “living concept”.’
Against this background, the critical question is whether contempt should be understood to arise in the sort of situation currently in play only if the MP concerned — Boris Johnson, in this case — knowing or deliberately misled Parliament, or whether contempt can be committed irrespective of whether there was knowledge or intent. The Clerk of the Journals’ memorandum concludes that ‘the intention of the contemnor is not relevant’ but that intention ‘has been considered relevant when a Committee has been considering whether or not there should be penalties for a contempt, or the severity of those penalties; it is best thought of as an aggravating factor in respect of remedy rather than a component part of the allegation’.
The legal opinion written by Pannick and Pobjoy takes issue with this, pointing out that Erskine May (in paragraph 15.32) records that the House of Commons agreed that its ‘penal jurisdiction’ should be exercised ‘as sparingly as possible’ and only when ‘essential in order to provide reasonable protection for the House, its Members or its officers from improper obstruction’. Pannick and Pobjoy argue that it would not be compatible with this position to treat inadvertent misleading as contempt, since inadvertent misleading could not reasonably be considered ‘improper’. They further argue that to treat inadvertent misleading as contempt ‘would devalue the currency of contempt and would be likely to have a chilling effect on Ministerial comments in the House’.
Pannick and Pobjoy make a good point when they suggest that the Clerk of the Journals defines contempt too broadly. Once the matter is viewed through the lens of democratic and constitutional principle, inadvertent misleading of Parliament in itself surely does not fall within the mischief at which the notion of contempt is directed. The Clerk of Journals’ definition is therefore overinclusive from the perspective of constitutional principle. But Pannick and Pobjoy’s approach is underinclusive in an important respect. A statement that unintentionally misleads the House, and which should not therefore be regarded as a contempt at the time of its utterance, may become a contempt should the Member in question later become aware of its falsity and fail to correct the record. The notion that the record must be corrected in such circumstances is uncontroversial, and is recognised, for example, in paragraph 1.3(c) of the Ministerial Code:
it is of paramount importance that Ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.
Pannick and Pobjoy are therefore correct, in my view, to argue that inadvertent misleading of Parliament should not necessarily be regarded as a contempt. But inadvertently misleading statements may surely become a contempt if inadvertent errors are left uncorrected. This represents a balanced approach that avoids the ‘chilling effect’ concern highlighted by Pannick and Pobjoy while giving proper weight to the ongoing nature of the obligation upon Ministers, as recognised in the Ministerial Code, to see that they are truthful and accurate in what they say to Parliament.
Second, Pannick and Pobjoy take the Committee to task by arguing the procedure it proposes to adopt is flawed. In a resolution appended to its report, the Committee sets out its proposed procedure in some detail, explaining, among other things, that it will invite written evidence and will take oral evidence from Johnson (and may take it from others), that witnesses may be accompanied by legal advisers, and that, should the Committee propose to criticise Johnson or anyone else, it will send them ‘warning letters’ giving them a right of reply.
Pannick and Pobjoy contend that this proposed procedure is wanting in a number of respects. In particular, they argue that the Committee has failed to recognise that ‘a fair procedure requires that before Mr Johnson gives evidence, he should be told the detail of the case against him’, that ‘a fair procedure requires that Mr Johnson should be able to be represented at a hearing before the Committee by his counsel’ and that ‘Mr Johnson should be able, through his counsel, to cross-examine any witness whose evidence is relied on to establish a contempt of the House’.
In identifying these procedural standards — to which the Committee has not indicated it proposes to adhere — Pannick and Pobjoy explicitly draw upon the procedural standards which they say would be applicable if the Committee of Privileges were to be a public body subject to the courts’ judicial review jurisdiction, while noting that, as a result of the principle of parliamentary privilege, the Committee is not such a body:
Because of Parliamentary privilege, the decisions of the Committee — procedural and substantive — cannot be the subject of judicial review, by contrast with the decisions of other public bodies. But 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.
There are a number of difficulties with this analysis. It may be taken to imply that the Committee’s immunity from judicial review is attributable to some sort of legal happenstance. But nothing could be further from the truth. In fact, the Committee, as a parliamentary committee, is not subject to judicial review because under the principle of parliamentary privilege, proceedings in Parliament are not subject to legal oversight by courts. The matter is put in this way by Article 9 of the Bill of Rights: ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’. This amounts to a cornerstone of the separation of powers as understood in the context of the UK constitution.
Equally, or perhaps even more, fundamentally, it is manifestly not the case that particular due process standards would be applicable to the Committee of Privileges but for a procedural — albeit constitutionally fundamental — nicety. The Committee is not subject to the procedural rules referred to by Pannick and Pobjoy quite simply because it operates in a constitutional realm — the parliamentary realm — to which the relevant legal standards are wholly inapplicable. Ultimately, therefore, the charge that appears to be directed at the Committee is that it is declining to play by the rules of a game that it is not in the first place playing. The Committee is engaged in a political process as distinct from the sort of process that is amenable to judicial review and the legal standards to which such processes must adhere. It follows that as a parliamentary committee, the procedure of the Committee of Privileges is a parliamentary matter. It is not a legal matter or a matter for the courts, and using as a yardstick the rules of due process that would apply to it if it were to be a public body subject to judicial review is neither here nor there.
None of this is to suggest that the process the Committee has decided to adopt is ‘correct’ (or that the Committee should not act fairly). But what amounts to an appropriate and fair process is highly context dependent. Indeed, this is a point that courts, in judicial review cases, themselves recognise and make a great deal of. This point, in turn, exposes a further difficulty with Pannick and Pobjoy’s argument: they appear to presuppose that if, in a parallel universe, a court were to adjudicate in judicial review proceedings on whether the Committee of Privileges had acted unlawfully, the court would apply to that Committee the very same procedural standards that apply in other contexts. This fails to acknowledge that the courts have — for good reasons — never had occasion to rule on what sort of procedural standards ought to be followed by parliamentary committees, and simply assumes, without reasoned justification, that a court would make no allowance for the fact it would be addressing the question of procedural fairness in an entirely unfamiliar context that differs fundamentally from the contexts in which courts normally address such matters. The key point, however, is that what constitutes an appropriate process in this context is a political question for the Committee of Privileges and Parliament, not a question that can or should be resolved by pointing out that the Committee proposes to operate inconsistently with one particular set of legal standards that have no application to it in the first place.
Boris Johnson began his time in office by seeking to prorogue Parliament. When that decision was challenged in (and found unlawful by) the Supreme Court, his Government argued that lawyers and judges had no place interfering in such political matters. It is therefore ironic — but, for someone who famously likes to ‘have his cake and eat it’, unsurprising — that Johnson should end his time in office by seeking to invoke legal standards in relation to a matter that falls clearly in the political realm and squarely within the principle of parliamentary privilege.