Matter referred on 21 April 2022 (conduct of Rt Hon Boris Johnson): Final Report/Annex 1

by House of Commons Committee of Privileges

Annex 1: Process and procedure

The Committee set out its own view of its intended procedures in the inquiry in a Resolution on Procedure agreed on 19 July 2022, and in its Second Report of Session 2022–23, published on 21 July 2022.^[1]

Criticisms of the Committee’s procedures have been set out in three legal Opinions commissioned by Mr Johnson from Lord Pannick KC and Jason Pobjoy:

• The first Opinion was published by HM Government on 2 September 2022, when Mr Johnson was Prime Minister, without notice to the Committee. The Committee responded to the Opinion in its Third Report of Session 2022–23, published on 26 September 2022.^[2]
• The second Opinion was published by the Committee at the same time that it published its Fourth Report of Session 2022–23, on 3 March 2023.^[3] The Committee gave consideration to the Opinion and commented that it “has nothing further to add to its comments in the Third Report” (Fourth Report, Para 15, footnote 14).
• The third Opinion is published at the same time as the present report,^[4] together with comments on it by the Committee’s legal adviser, Sir Ernest Ryder, which the Committee endorses.^[5]

The Committee sets out below answers to questions about its process and procedure, including those frequently posed by Mr Johnson and his supporters. Quotations in the questions below are taken from Mr Johnson’s public statement of 9 June 2023 (set out as Appendix 3 to this report) or his earlier submissions to the Committee.

Questions and answers

1. Is the Committee ‘Labour-dominated’?

By convention, select committees are nominated (insofar as is possible) in proportion to party representation in the House. The Committee of Privileges contains four Conservative MPs, two Labour MPs and one Scottish National Party MP. By convention the Chair has been appointed from the principal Opposition party. (Until Mr Bryant recused himself from the present referral, the elected members of the Committee of Privileges and the Committee on Standards have been the same (the latter committee having also lay members); under Standing Order No. 122B the Chair of the Standards Committee is required to be a member of the official Opposition). Nominations of members of select committees are put to the House and can be objected to; none of the nominations of current members of the Committee were objected to, and they therefore had the support of the whole House.

Under House of Commons rules the Chair does not vote unless a division is tied, in which case there is a casting vote. That means the actual voting strength of the parties on the Committee is Conservative 4, Labour 1, SNP 1, with the Labour Chair only voting in the event of a tie. Paragraph 9 of the report comments that, “we leave our party interests at the door of the committee room and conduct our work in the interests of the House. That is what we have striven to do throughout this inquiry”.

2. What triggers an inquiry by the Committee?

The Committee looks at matters referred to it by the House: it has no power to launch its own inquiries. Once that referral has been made, the Committee may look at all connected matters. In 1947 the House resolved, “That when a matter of complaint of breach of privilege is referred to a Committee, such Committee has, and always has had, power to inquire not only into the matter of the particular complaint, but also into facts surrounding and reasonably connected with the matter of the particular complaint, and into the principles of the law and custom of privilege that are concerned”.^[6]

In addition, Standing Order No. 133 provides:

Every select committee shall have leave to report to the House its opinion and observations upon any matters referred to it for its consideration, together with the evidence taken before it, and also to make a special report of any matters which it may think fit to bring to the notice of the House.

Erskine May notes that “The interpretation of the order of reference of a select committee is […] a matter for the committee” (25th ed., para 38.11).

3. Has the Committee moved the procedural goalposts?

No. The fundamental elements of that procedure are established by the standing orders and precedent of the House. Wherever the Committee had to make a procedural decision within its limited discretion it did so with the intention of being fair to Mr Johnson while balancing the need to rigorously examine the issues that arise on behalf of the House.

Contempt of the House is governed by the law of privilege. The categories of contempt are unfettered, that is, they are not fixed for all time and it is for the House to decide whether conduct that is alleged is a contempt or not. The House has not excluded the possibility that there may be contempt based upon reckless conduct and the Committee had to keep that in mind. In this case, the Committee has concluded that Mr Johnson’s conduct was not merely reckless but was deliberate and so the question is academic, but it will remain a matter for the House in any subsequent inquiry.

4. Is it appropriate for the Committee to follow the procedures of the courts?

The Committee has to follow parliamentary procedure, but where it has power to refine that procedure it has done so in this inquiry in a way favourable to Mr Johnson, requiring all evidence to be accompanied by a statement of truth, providing material to Mr Johnson and giving him time to make submissions before coming to a provisional conclusion, which was itself shared with Mr Johnson so that he could make further submissions.

5. Has the Committee kept within its terms of reference?

Yes. The Committee has only dealt with issues referred to it by the House. The Committee did not in any way alter the definition of contempt.

6. Has Mr Johnson “no formal ability to challenge anything they [the Committee] say”?

That is not correct. The rules are designed to enable the person inquired into to know the allegations and to respond so that the Committee can take that into account. The Committee wrote to Mr Johnson inviting an initial written submission on 21 July 2022. No initial written submission was received in response to this invitation. At his lawyers’ request and in order to be fair to Mr Johnson the Committee published, in its Fourth Report on 3 March 2023, the principal issues that the Committee sought to raise with him in oral evidence. The Committee also disclosed all the material it had received (unredacted) to Mr Johnson, not just the evidence it sought to rely on. Mr Johnson gave oral evidence on 22 March in relation to the contents of the Fourth Report. Shortly before the evidence session he submitted written evidence, and he subsequently made further written submissions. Mr Johnson was sent in confidence a warning letter together with relevant provisional conclusions including on sanction on Thursday 9 June 2023, and was invited to make a further submission on those provisional findings. If Mr Johnson had remained a Member of the House he would have been able to make any further points he wished directly to the House, before any decision on sanction.

7. Has the Committee relied on the Sue Gray report?

No. The Committee does not rely on the Sue Gray report or on the notes compiled in preparing it for its evidence. Where the notes, to which the Committee had access, suggested an individual might have evidence relevant to the inquiry, the Committee asked for evidence directly from that individual, accompanied by a statement of truth.

8. Has the Committee been on ‘fishing expeditions’?

No. The Committee sought only those documents which were relevant and approached only those witnesses who were relevant or who the notes of the Sue Gray report indicated might have relevant information. On request from Mr Johnson, the Committee also approached specific people to ask about points raised by Mr Johnson or on matters which might have been favourable to him.

On 18 May 2023 the Government supplied us with new evidence relating to 16 gatherings at No. 10 and at Chequers, assessed by the Government Legal Department as being events/ activities “which could reasonably be considered to constitute breaches of Covid Regulations”. Mr Johnson has provided, under a statement of truth, explanations of the 16 events referred to. We have no evidence conflicting with his account. We do not wish to incur the further delay to our inquiry that would result from a detailed investigation of these events, and therefore we treat Mr Johnson’s explanations as prima facie accurate.

9. Has the Committee disclosed relevant evidence to Mr Johnson?

Yes, all evidence has been disclosed to Mr Johnson – see above (Question 6).

10. Has the Committee taken anonymous evidence? Why has it redacted some documents?

No, the Committee has neither received nor relied upon any anonymous evidence.

In its report on procedure published in July 2022 the Committee, in the interests of setting out all options, raised the possibility that “whistle-blowing” evidence might be taken anonymously with the identity of the witness not disclosed to Mr Johnson. In the event it has not withheld from Mr Johnson the identity of any witness. All evidence and the identity of those submitting it has been disclosed to Mr Johnson.

The Committee received a great deal of documentation in this inquiry. In accordance with best practice, it has published only material accepted as relevant evidence and on which either the Committee or Mr Johnson has sought to rely. Some of this material has been redacted, with Mr Johnson’s approval, to remove the identifying details of, e.g., junior civil servants.

11. Why has the Committee not published all the evidence it has received?

See previous answer.

12. Why has the Committee not published its correspondence with Mr Johnson?

The Committee has published some, but not all, of this correspondence.

Mr Johnson’s lawyers have engaged in extensive correspondence with the Committee, much of it concerning administrative matters or issues of timing. That correspondence does not constitute evidence. The Committee’s practice is to put into the public domain only evidence or other material which it is necessary to publish for the purposes of the inquiry. For that reason it published an exchange between the Chair and Mr Johnson’s lawyers on the day of the 22 May 2023 hearing, and is publishing with this report a letter from Mr Johnson sent to individual Committee members shortly after the hearing (see Appendix 2).

13. Did the Committee prejudge the issues when it published its Fourth Report?

No, the Committee was responding to a request from Mr Johnson’s own lawyers to set out the principal issues arising out of the evidence that he would have to answer when he gave oral evidence.

14. Was Mr Johnson subject to “highly partisan cross-examination” on 22 March 2023?

No. The purpose of questioning a witness in oral evidence is to test the strengths and weaknesses of their evidence. Posing challenging questions, with ample opportunity given for the witness to reply, is not only legitimate but essential.

15. Was Mr Johnson allowed legal advice?

Yes. The Committee’s Resolution on Procedure specifically provided for such legal (or other) advice and specified that any witness could be accompanied at evidence session by such advisers and to take advice during those sessions. Legal advisers are not permitted to address a select committee (see below)

16. Why was Mr Johnson’s counsel not allowed to address the Committee?

Under the rules of the House, only witnesses are permitted to address select committees. A lawyer representing a client is not a witness. No select committee appointed under public business standing orders, as is the Committee of Privileges, is permitted to hear Counsel without specific authorisation from the House. No proposal for the Committee to hear Counsel has been put to the House by the Government or any Member. More detailed background on this matter is given in the Committee’s Third Report (paras 22–27).

17. Why was evidence taken on oath?

Select committees have the power to take evidence on oath (see Erskine May, 25th ed., para 38.37). At an early stage in its inquiry the Committee decided, due to the seriousness of the matter before it, that all written evidence in the inquiry should be accompanied by statements of truth and that oral evidence from all witnesses should be given on oath. Had witnesses other than Mr Johnson been called, their evidence would also have been taken on oath.

18. Is the Committee “performing the role of investigator, prosecutor, judge and jury”?

The terms ‘prosecutor, judge and jury’ are neither appropriate nor relevant to the procedure used by select committees of the House and in particular, the Committee of Privileges. The procedure is not an adversarial court procedure. The Committee is the investigator of the terms of the inquiry which are referred to them by the House. The Committee did not pursue a case against Mr Johnson as a prosecutor might. They investigated the subject referred to them by obtaining evidence and had regard to all of the evidence that was relevant, including that requested by Mr Johnson, whether it was favourable or adverse to any conclusion. In accordance with precedent and its own procedures, the House expects the Committee to come to conclusions and recommendations in a report that the House can then debate and decide upon. It is the House that makes the decision about those conclusions and recommendations not the Committee, and the House is able to accept, reject or amend them. The Committee is not a ‘ judge in its own cause’. It is for the House as a whole to make a decision.

19. Is it the case that “in no other context would this be regarded as a fair or impartial process”?

No. An investigative or inquisitorial process will be fair if the person against whom an allegation is made is protected by two principles: the principle of contradiction and the principle that no person may be a judge in their own cause. There is an extensive commentary on these principles and how they apply to the procedures of the House and its Committees in the recent review of fairness and natural justice in the House’s standards system (see in particular at paragraphs 50 and 59).^[7]

The first principle is about whether and how a person is to be heard. The Committee has ensured that its procedures provide for comprehensive disclosure of evidence and documents in unredacted form, the ability to take legal advice and to have legal assistance throughout the process, the identity of witnesses, notice of the issues that the evidence suggests need to be pursued, the opportunity to give evidence in writing and the opportunity to be heard in person, the opportunity to make further submissions after all the evidence has been received and, finally, the right to make representations before conclusions and recommendations are made to the House.

The second principle in practice requires the investigation to be separated from the decision in any case where there are serious implications and for those who perform those roles to be separate in an inquiry of the kind that is conducted by the Committee of Privileges. That is precisely what is provided for in the procedures of the House. The Committee investigates and comes to its own conclusions and recommendations, and the House decides and has complete freedom to accept, reject or amend what the Committee has recommended.

20. Can the Committee sanction Mr Johnson?

No, the Committee has no power to impose sanctions. It makes recommendations to the House. The decision-making power on sanctions rests with the whole House.

21. Does the inquiry continue whether or not Mr Johnson is an MP?

Yes, the Committee has been instructed by the House to carry out this inquiry and it is the duty of the Committee to continue until its investigations are complete and it has reported its recommendations to the House.

22. Will the inquiry have a chilling effect on Ministers’ willingness to speak at the Dispatch Box?

No, there are well established procedures which are routinely used by Ministers, to correct errors which might otherwise mislead the House. It is important that those procedures are used so that the House can exercise its proper scrutiny over Government.

1. Committee of Privileges, Second Report of Session 2022–23, Matter referred on 21 April 2022: proposed conduct of inquiry (HC 632), published 21 July 2022
2. Committee of Privileges, Third Report of Session 2022–23, Matter referred on 21 April 2022: comments on joint opinion of Lord Pannick QC and Jason Pobjoy (HC 713), published 26 September 2022
3. Committee of Privileges, Fourth Report of Session 2022–23, Matter referred on 21 April 2022: summary of issues to be raised with Mr Johnson (HC 1203), published 3 March 2023
4. Third Opinion of Lord Pannick KC and Jason Pobjoy dated 24 April 2023
5. Response of Sir Ernest Ryder, Legal Adviser to the Committee, to the Third Opinion of Lord Pannick KC and Jason Pobjoy
6. Commons Journal, vol 203, page 23 (30 October 1947)
7. Committee on Standards, Sixth Report of Session 2021–22, Review of fairness and natural justice in the House’s standards system (HC 1183), published 4 March 2022