Boris Johnson has been accused of trying to intimidate the parliamentary committee investigating whether he lied to the Commons over Partygate, after Downing Street released a legal opinion suggesting its inquiry would be viewed as “unlawful” by the courts.
Eminent lawyer Lord Pannick was paid nearly £130,000 in public money to scrutinise the privileges committee’s procedures, which he concluded were “unfair” because it will pass judgement not only on whether Mr Johnson deliberately lied to MPs but also on whether he simply “misled” them.
And he said it was wrong for the cross-party committee – which is chaired by Labour’s Harriet Harman but has an in-built Conservative majority – to take anonymous evidence and to deny Mr Johnson the right to be represented in hearings by a lawyer and to cross-examine witnesses.
But Lord Pannick’s arguments were branded “odd” by the government’s former top legal adviser, Sir Jonathan Jones, who said the peer was deploying arguments based on court practices which do not apply to parliamentary hearings.
Cambridge University professor of public law Mark Elliott described Lord Pannick’s broadside on the committee as “like criticising rugby players for not playing by the rules of football”.
And privileges committee chair Chris Bryant said the release of the document was reminiscent of the “kangaroo court” tactics the PM used to try to save his ally Owen Paterson from punishment for sleaze.
“You would have thought that Boris Johnson would want to clear his name in front of the privileges committee instead of trying to intimidate it,” said Mr Bryant, who has stood aside from the inquiry due to his previous criticisms of Mr Johnson.
“I saw the same intimidation over Owen Paterson. The kangaroo court of his mates found him innocent despite the evidence.
“It’s time this disgraceful bullying stopped. Let’s hear and see the evidence. If Johnson has a good case to make, he’ll be vindicated. If not, he should take his punishment. The families who abided by the rules when Johnson’s Downing Street didn’t, deserve the truth.”
Pannick received £129,700 in taxpayers’ money to scrutinise the privileges committee, according to contract details published on Friday. Sources confirmed to The Guardian that a Cabinet Office document detailing the payment – for “legal advice” provided over four months – refers to the peer’s contract.
Mr Johnson’s decision to commission an opinion from Lord Pannick, who has previously appeared against the government in Brexit cases, was seen by some in Westminster as part of a concerted effort to derail an inquiry which could find the PM in contempt, potentially leading to suspension from parliament and recall as a constituency MP.
His likely successor as prime minister, Liz Truss, has said she would vote for the probe to be called off. But no vote has been called, and it is questionable whether she would order one and risk provoking a backbench rebellion at the outset of her premiership.
Halting the inquiry would require a vote in parliament because a motion ordering it was passed by the Commons without opposition earlier this year.
Lord Pannick’s 22-page opinion focused on the committee’s decision to follow the interpretation of senior Commons official Eve Samson, clerk of the journals, who said that intention was “not relevant” to making a decision on whether a contempt has been committed by a minister who misleads parliament.
He insisted that an inaccurate statement by a minister “is only a contempt if the minister knew that the statement was false and intended to deceive the House”. There was “no basis for the novel approach which the committee has adopted”, he said.
He also said that anonymous evidence would not be allowed in a criminal trial because it would be unfair to the defendant, and it was “impossible to understand why such unfairness should be tolerated in the present context”.
“In our opinion, the committee is proposing to adopt an approach to the substantive issues, which is wrong in principle in important respects, and the committee is also proposing to adopt an unfair procedure,” said the QC.
“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.”
But Prof Elliott said that it was a matter of “basic and sound constitutional principle” that parliamentary hearings were subject to different rules from courthouses and could not be taken to judicial review.
“It seems extremely unwise to me to go down the route of seeking to impose legal standards on parliamentary, political processes,” he said. “Paradoxically, Johnson’s government itself has railed against lawyers’ ‘interference’ in political matters.”
Sir Jonathan, who quit as head of the government legal service in 2020 in protest at plans to break international law over Brexit border arrangements for Northern Ireland, said: “The whole point is that the system is a parliamentary one – MPs sitting in judgement on MPs. The committee is not a court, and it’s not subject to supervision by the courts.
“The committee will no doubt want to adopt a fair process, perhaps learning from good practice in other contexts. But the legal rules which might apply elsewhere don’t apply here. They just don’t.”
Both experts said that, even if the PM managed to convince the committee that he did not mean to mislead MPs when he insisted no lockdown rules had been broken at No 10, it was still within its rights to consider whether he committed a contempt by deliberately failing to correct the information as soon as he learnt it was untrue.
Allies of Mr Johnson have argued that exposing ministers to contempt inquiries for inadvertently providing incorrect information would limit what they could say in the Commons.
Nadine Dorries, the culture secretary, said: “As a minister, you simply cannot verify every single piece of trusted advice and information you are given in good faith by well-intentioned and conscientious senior officials. What this potentially does is set a trap for every minister in the future and it’s a chilling prospect for the future of our democracy.”
Ms Dorries said: “This expert legal opinion shows that the inquiry was a biased, Kafkaesque witch hunt – it should now be halted before it does any more damage.”
Thangam Debbonaire, Labour’s shadow cabinet minister, said: “The House of Commons debated this fully on 21 April. Nobody voted against it.
“This government knew what the rules were then. They know what the rules are now.
“It just feels a lot like, yet again, there’s people in this current – I’m afraid to say future – Tory government playing fast and loose with these rules and with standards.”
Liberal Democrat spokesperson Christine Jardine demanded to know how much taxpayer money had been spent on obtaining the advice.
“People are tired of these expensive attempts by this government to manufacture ways for Boris Johnson to wriggle out of any consequences of his actions,” she said.
