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).[1]
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
- ↑ 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
