Matter referred on 21 April 2022 (conduct of Rt Hon Boris Johnson): Final Report/Chapter 4

by House of Commons Committee of Privileges

4 Misleading the House

184. The House’s resolution of 21 April 2022 cited some of Mr Johnson’s answers at PMQs on 1 and 8 December 2021 as “appear[ing] to amount to misleading the House”, and referred the matter of Mr Johnson’s conduct to us to consider whether it amounted to a contempt.^[1]

185. Mr Johnson himself, in the aftermath of the police issuing of Fixed Penalty Notices and the publication of the Sue Gray report in May 2022, has accepted that the House was misled. He told us in oral evidence:

There was a near-universal belief at No. 10 that the rules and guidance were being complied with. That is the general belief that […] governed what I said in the House. As soon as it was clear that I was wrong, and as soon as the Sue Gray investigation and the Metropolitan Police investigation had concluded, I came to the House of Commons and I corrected the record, as I promised I would.^[2]

186. The question we consider in this section of our report is whether the House may have been misled in ways which go beyond those which Mr Johnson has acknowledged. In our Fourth Report, containing a summary of issues we intended to raise with Mr Johnson in his oral evidence, we set out “evidence that the House of Commons may have been misled in the following ways which the Committee will explore”.^[3] We now revisit that section of the Fourth Report in the light of the full evidence we have taken in the inquiry. In our opinion the House was misled in each of the ways we listed. We set out below each category of misleading with a reference to the paragraphs in the present report which deal with it (and some further comments where appropriate). We then consider a number of further instances in which Mr Johnson may have been disingenuous with the House and with us.

187. We also consider the issue of Mr Johnson’s correction of, or failure to correct, the parliamentary record. In paragraph 110 of his written evidence, Mr Johnson states: “I believe that my statement to the House of Commons on 25 May 2022,^[4] the publication of the Sue Gray report and its placing in the Library of the House of Commons, constituted a full correction of my honest but inadvertently misleading statements”. In paragraph 108, he argues that his statement in the House on 25 May 2022 “was the earliest opportunity at which I could make the necessary correction”. When asked during oral evidence on 22 March 2023 whether he wished to reassert that guidance had been followed at all times when he was present at gatherings to wish staff farewell, Mr Johnson maintained that “I see no reason to withdraw what I said on 25 May”, and that he did not wish to correct the record.^[5]

Misleading: conclusions

188. Using the categories of misleading set out in paragraph 32 of the Fourth Report, we conclude that:

1. Mr Johnson misled the House when he said on 1 December 2021 that all Guidance was followed completely in No. 10, when he said on 8 December 2021 that the Rules and Guidance were followed at all times, on 12 January 2022 when he said that events at No. 10 were within the Rules and Guidance, and on 25 May 2022 when he said that the Rules and Guidance had been followed at all times when he was present at gatherings to wish staff farewell. See paragraph 117.
2. Mr Johnson misled the House when he failed to tell the House about his own knowledge of the gatherings where the Rules or Guidance had been broken. See paragraphs 23 to 94.
3. Mr Johnson misled the House when he said on 8 December 2021 that he relied upon repeated assurances that the rules had not been broken. There is evidence that Mr Johnson was assured by two individuals who had worked at No. 10 at the time that they did not think the gathering of 18 December 2020 had broken Covid rules—see paragraphs 136 to 144, and 176. However, we conclude that:
   1. Mr Johnson had personal knowledge about gatherings which he should have disclosed. See paragraphs 23 to 94.
   2. Mr Johnson concedes that there was no assurance about any gathering’s compliance with the guidance that was in place at the time (as opposed to compliance with the Covid rules), yet Mr Johnson gave the House the impression that those assurances had been overarching and comprehensive in respect of No. 10’s compliance with all Covid measures. See paragraphs 144, 146, 161, and 180 to 183.
   3. The purported assurances were only about the gathering of 18 December 2020, not more generally about No. 10’s compliance with the Rules and Guidance, yet Mr Johnson gave the House the impression that those assurances had been overarching and comprehensive in respect of No. 10’s compliance with Covid measures across the whole period of restrictions. In particular, we have received no evidence that any specific assurance was provided in relation to the gatherings of 20 May 2020, 19 June 2020, 13 November 2020, 27 November 2020 and 14 January 2021 which we have examined in detail. See paragraphs 145, and 180 to 183.
   4. The context for the initial purported assurance was in response to a media inquiry and the assertion that Covid rules were followed was initially developed in haste, and without further investigation, as a media line to take. They were therefore not appropriate for Mr Johnson to cite as an authoritative indication of No. 10’s compliance with Covid measures. See paragraphs 137 to 141.
   5. The only two purported assurances for which there is firm evidence did not emanate from senior permanent civil servants or government lawyers but from two media advisers, one of whom was a personal political appointment by Mr Johnson. The purported assurances consisted only of what those individuals themselves believed about the compliance of the gathering of 18 December 2020 with the Rules. They were therefore not appropriate to be cited as an authoritative indication of No. 10’s compliance with Covid measures. See paragraphs 139 to 144, 163 to 165, and 176 to 178.
4. Mr Johnson misled the House when he gave the impression that there needed to be an investigation by the Second Permanent Secretary to establish whether the rules and guidance had been broken before he could answer questions to the House. While repeatedly making that statement to the House, he had personal knowledge that he did not reveal. See paragraphs 23 to 94, and 127.
5. We additionally find that Mr Johnson misled the House when he purported to correct the record on 25 May 2022. We have concluded above that his statement on that date that the Covid Rules and Guidance were followed while he was in attendance at farewell gatherings at No. 10 was misleading. As such, it represented a continuation of his previous misleading of the House, and seeking to present it as a correction was itself misleading. His insistence on the truthfulness of this statement in his written evidence, and his refusal to correct the record when invited to do so during his oral evidence on 22 March 2023, is a further misleading. See paragraphs 131 and 187.

189. We further conclude that Mr Johnson has been disingenuous with the Committee in ways which amount to misleading, as follows:

1. By adopting a narrow and restricted interpretation of the assertions he gave to the House in PMQs on 1 and 8 December 2021 which is at odds with the general impression he clearly wished to give in the House that all Rules and Guidance at No. 10 had been followed at all times. See paragraphs 180 to 183.
2. By claiming that when he referred to having been repeatedly assured, by “repeatedly” he had meant merely “on more than one occasion”. We note that this is contrary to common English usage. It is clear that when Mr Johnson used the term “repeatedly” at PMQs, he wished his audience to suppose that there had been multiple occasions at which assurances had been given, rather than merely more than one, and, as suggested by our evidence, possibly as few as two. See paragraph 134.
3. By undertaking to provide the Committee with the name of another person who had provided assurances, and then failing to do so. See paragraphs 167 to 169.
4. By stating at the oral evidence session that the Committee had withheld from publication “the evidence that I rely on, which answers the charges” and “a large number of extracts which I rely upon in my defence”, but then, when the Committee had facilitated the production of that evidence accompanied by statements of truth, failing to make any use of it in his subsequent final submission. This strongly suggests that Mr Johnson did not “rely on” the evidence at all but was simply using it as a gambit to criticise the Committee in the public hearing. See paragraph 220.
5. By advancing an unsustainable interpretation of Guidance in order that he can deny the implications of the evidence showing a lack of social distancing. See paragraphs 99 to 102, and 115 to 116.
6. By being unable to deny that he said the words “probably the most unsocially distanced gathering in the UK right now” while not admitting that he said them, which has the ring of avoidance about it. See paragraphs 68 to 69.

Was it a contempt?

190. We have set out above the evidence which leads us to conclude that Mr Johnson misled the House. The House has instructed us to consider whether Mr Johnson’s conduct in this matter amounted to a contempt.

191. In considering the concept of contempt we are indebted to a helpful note on the subject by the Clerk of the Journals which we published as an annex to our Second Report and which sets out the relevant background in greater detail than we have scope to do here.^[6]

192. Erskine May defines a contempt as follows:

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.^[7]

193. May concludes:

It is therefore impossible to list every act which might be considered to amount to a contempt, as Parliamentary privilege is a ‘living concept’.^[8]

194. The House agreed in 1978 that “in general the House should exercise its penal jurisdiction: (i) in any event as sparingly as possible, and (ii) only when satisfied that to do so was essential in order to provide reasonable protection for the House, its Members or its officers from improper obstruction or attempt at or threat of obstruction causing, or likely to cause, substantial interference with the performance of their respective functions.”^[9]

195. As the Clerk of the Journals points out, this means that cases are relatively rare, and while Committees have sometimes tried to draw out principles from precedent, they do not consistently do so.^[10] Ultimately in each case it is up to the Committee of Privileges to determine:

1. whether the conduct complained of is a contempt, and has reached the necessary bar set by the House;
2. the degree of culpability of the contemnor.^[11]

196. We have no difficulty in concluding that Mr Johnson’s misleading of the House has “obstructed or impeded the House in the performance of its functions”. A core function of the House is scrutiny of the Executive. A Minister who gives the House false information from the Despatch Box is impeding its ability to carry out its essential task scrutiny. As the Clerk of the Journals notes, “misstatements by Ministers are inherently likely to obstruct or impede the House”.^[12] Misstatements by the Prime Minister, at the apex of the governmental system, are even more likely to do so.

197. In the present case the potential impact on Parliament’s ability to scrutinise the Executive was of no minor or trivial kind. For the House to be given misleading information about the conduct of Ministers and officials at the highest level of Government, in the midst of the grave national emergency represented by the Covid-19 pandemic, and in relation to how far those Ministers and officials were observing the severe restrictions which they were instructing the public at large to follow, is a matter of great seriousness.

198. We have given very careful consideration to the question of whether Mr Johnson misled the House recklessly or intentionally. He himself told us that:

I am here to say to you, hand on heart, that I did not lie to the House. When those statements were made, they were made in good faith, and on the basis of what I honestly knew and believed at the time.^[13]

199. Mr Johnson argues that whether or not the Covid Rules and Guidance were breached at gatherings he attended, or was aware of, at No. 10 (and he continues to maintain in the case of the six gatherings we investigated that they were not breached), he himself, along with many others at No. 10, genuinely believed they were complying with the Rules and Guidance.

200. To a great extent this defence depends on whether Mr Johnson genuinely believed that the gatherings were work events that satisfied the criteria in the Rules that such events be (before June 2020) “essential for work purposes” or (from June 2020) “reasonably necessary for work purposes”, and the criteria in the Guidance that, if social distancing cannot be observed, such an event “needs to continue for the business [or organisation] to operate”. We have noted that Mr Johnson was not willing to say that, if asked, he would have advised the general public that work events intended solely to raise morale satisfied these criteria. We have set out, at paragraph 117 above, our conclusion that it is “unlikely on the balance of probabilities that Mr Johnson, in the light of his cumulative direct personal experience of these events, could have genuinely believed that the Rules or Guidance were being complied with”.

201. We have also set out, in paragraphs 188 to 189 above, a list of ways in which we consider Mr Johnson has misled the House or been disingenuous in his responses to our inquiry. His personal knowledge of breaches of the rules and guidance, combined with his repeated failures pro-actively to investigate and seek authoritative assurances as to compliance issues, amount to a deliberate closing of his mind or at least reckless behaviour. We find it highly unlikely that Mr Johnson having given any reflection to these matters could himself have believed the assertions he made to the House at the time when he was making them, still less that he could continue to believe them to this day. Someone who is repeatedly reckless and continues to deny that which is patent is a person whose conduct is sufficient to demonstrate intent. Many aspects of Mr Johnson’s defence are not credible: taken together, they form sufficient basis for a conclusion that he intended to mislead.

202. We conclude that in deliberately misleading the House Mr Johnson committed a serious contempt.

Recommended sanction

203. It is ultimately for the House, not the Committee of Privileges, to determine whether a contempt has been committed, and if so what sanction, if any, to impose. To assist the House in this duty, if the House concurs that Mr Johnson committed a serious contempt, we have considered what sanction would be appropriate.

204. In serious cases the House has the right to suspend a Member, or withhold their salary, or expel them. These sanctions require the explicit approval of the House on the basis of a motion. The House is thus the decision-maker in terms of punishment of a Member for contempt, just as only the House itself can finally determine whether a contempt has actually been committed. The role of the Committee is therefore to carry out a delegated power of investigation and to report its findings to the House, with recommendations for action where appropriate. Motions to implement sanctions recommended by the Committee (unlike those recommended by the Committee on Standards or the Independent Expert Panel) are amendable and debatable.

205. The standing orders of the House do not set out a list of sanctions which the Committee may recommend. In deciding on its recommendations the Committee will be guided by precedent wherever possible and appropriate. There are few relevant precedents. Erskine May makes clear that the House may punish acts or omissions for which there is no precedent as long as they fall within the definition of contempt.^[14]

206. In addition to sanctions imposed in cases of contempt following Privileges Committee investigations, sanctions may also be imposed in cases considered by the Standards Committee where Members are found to have breached the Code of Conduct. In recent years the Standards Committee has taken steps to codify the use of sanctions in such cases. Breaches of the Code by Members may be regarded as being contempts, although they are dealt with under separate procedures set up by the House. As the intertwined history of the Privileges and Standards Committees indicates, there is considerable overlap between contempts and misconduct. It is therefore legitimate for the Privileges Committee, in considering sanctions, to take account of Standards Committee practice, while making allowance for differences as well as similarities between standards and privileges.

207. Based on precedent, or by analogy with the Standards Committee’s practice, the following options are available to the Privileges Committee in cases of contempt by a Member:

1. No further action.
2. Requiring an apology in writing, which would normally be published, or on the floor of the House by means of a point of order or a personal statement.
3. Recommending admonition or reprimand.
4. Recommending withholding of a Member’s salary or allowances for a specified period, even if the Member has not been suspended.
5. Recommending suspension from the service of the House for a specified period (during which time the Member receives no salary and must withdraw from the precincts of the House).
6. Recommending expulsion from the House.

208. We note that suspension from the House for 10 days or longer following a report from the Committee of Privileges engages the provisions of the Recall of MPs Act 2015, requiring a recall petition to be opened in the Member’s constituency.^[15] There are no precedents for the Committee of Privileges recommending a sanction against a Member since this Act came into force.

209. There are no formal criteria for imposing sanctions in privileges cases. In 2020 the Standards Committee published a list of aggravating and mitigating factors it would take into account in Code of Conduct cases.^[16] We have taken them into account.

210. We have concluded above that in deliberately misleading the House Mr Johnson committed a serious contempt. The contempt was all the more serious because it was committed by the Prime Minister, the most senior member of the government. There is no precedent for a Prime Minister having been found to have deliberately misled the House. He misled the House on an issue of the greatest importance to the House and to the public, and did so repeatedly. He declined our invitation to reconsider his assertions that what he said to the House was truthful. His defence to the allegation that he misled was an ex post facto justification and no more than an artifice. He misled the Committee in the presentation of his evidence. 211. Having taken into account the factors set out above, we considered what sanction would be appropriate in this case. We unanimously concluded that the minimum sanction we should recommend to the House should be suspension from the service of the House sufficient to engage the provisions of the Recall of MPs Act.

212. In agreeing to recommend that sanction, we took into account that this case will set a precedent for the standards of accountability and honesty that the House expects of Ministers. We have no doubt that Parliament and the public expect the bar to be set high and for there to be serious consequences if a Minister, as in this case, impedes or obstructs the functioning of the House by deliberately misleading it.

213. Having reached this provisional conclusion as to the recommended sanction, we then followed the procedure we had set out in our procedure resolution, and communicated to Mr Johnson the Committee’s proposal to recommend a sanction of suspension for a period long enough to engage the provisions of the Recall of MPs Act, inviting his comments. This material was sent to Mr Johnson under conditions of strict confidentiality.^[17] We set out the events that followed, and our view of their implications for sanctioning Mr Johnson, in the next section of this report.

1. See paragraphs 1 and 2 above
2. Q3
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, para 32
4. See paragraph 131 above
5. Qq149–153
6. 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, Annex 3 (Paper from the Clerk of the Journals: The definition of contempt)
7. Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 25th ed. (2019), paragraph 15.2
8. Ibid.
9. Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 25th ed. (2019), paragraph 15.32
10. Second Report, Annex 3, para 2
11. Second Report, Annex 3, para 5
12. Second Report, Annex 3 para 28
13. Q3
14. Erskine May, 25th ed. (2019), paragraph 11.19
15. See Second Report, paras 12–14 and Appendix, for Mr Speaker’s ruling that approval by the House of a motion following a report from the Privileges Committee has the same effect for these purposes of one following a report from the Standards Committee.
16. Committee on Standards, Seventh Report of Session 2019–21, Sanctions in respect of the conduct of Members (HC 241), published 21 July 2020, p23 (Table 1: Aggravating and mitigating factors)
17. Those conditions were set out in the Chair’s “warning letter” of 8 June 2023 as follows: “The enclosed document is confidential to Mr Johnson and his nominated legal advisers. It is protected by Parliamentary privilege and may not be disclosed to any other person or body. Publication, précis or quotation in any form will be reported to the House as a contempt. No copies of the document exist. It may not be copied or photographed and must be viewed in invigilated conditions as agreed with the Committee.”