Privilege: Conduct of Right Hon. Boris Johnson

William Cash Excerpts

Monday 19th June 2023 Commons Chamber

[Ms Harman]

I am happy to answer the right hon. Gentleman. I was appointed by this House in the expectation that I would chair the Committee, with no one speaking against it. After the tweets were brought to light and highlighted, as I am concerned about the perception of fairness on the Committee—I agree that perception matters—I made it my business to find out whether it would mean that the Government would not have confidence in me if I continued to chair the Committee. I actually said, “I will be more than happy to step aside, because perception matters and I do not want to do this if the Government do not have confidence in me. I need the whole House to have confidence in the work that it has mandated.” I was assured that I should continue the work that the House had mandated, and with the appointment that the House had put me into, and so I did just that.

Our report was based on two things: the evidence and our keen awareness of the seriousness of misleading the House. The Committee was unanimous that a sanction that would trigger the Recall of MPs Act was justified in the light of our conclusion that Mr Johnson deliberately misled the House and the Committee. We then felt it necessary to increase the sanction to 90 days to reflect the seriousness of his breaching of the confidence of the Committee, his impugning of the Committee, thereby undermining the democratic process of the House, and his complicity in a campaign of abuse, attempting to intimidate the Committee, to stop us from carrying out our work and to discredit it.

Like the right hon. Member for Maidenhead, with whom I share a great deal—including, it turns out, a necklace—I thank every member of the Privileges Committee. Over the course of the past year, they have considered thousands of pages of evidence and participated in more than 30 meetings to do the job that the House asked them to do with outstanding dedication and commitment, particularly the Conservative members of the Committee, who have also had to be extraordinarily resilient. They have had to withstand a campaign of threats, intimidation and harassment designed to challenge the legitimacy of the inquiry, to drive them off the Committee and thereby to frustrate the intention of the House that the inquiry should be carried out. Yet through all that, they have not given in to the intimidation. They have been unflinching in their duty to the House, and we owe them a huge amount.

We need Members to be prepared to serve on the Privileges Committee. They must be free to base their judgments on the evidence, free from pressure one way or the other. If the House wants its rights to be protected in the future, it must act to stop intimidation of members of the Privileges Committee.

Attacks by hon. Members on other hon. Members designed to pre-empt the Committee’s findings frustrate the will of the House, erode public confidence and thereby undermine our democracy. They may themselves be contempt of the House, because they are attempts to impede the functioning of the House. We will make a further report to the House on that shortly, inviting consideration of what could be done to prevent it from happening in the future.

None of that is a threat to the free speech of Members. Members can engage in the process throughout: they can speak and vote against a referral to the Privileges Committee; they can speak and vote against the appointment of any member of the Privileges Committee; they can bring to the House proposals for changes to the procedure; and they can speak about a report’s conclusions, but what they must not do is interfere with the work the House has mandated.

The report does not create a chilling effect on what Ministers say at the Dispatch Box. If Ministers make a mistake, which inevitably happens, and inadvertently say something that is misleading, they are expected to correct it at the earliest opportunity, and that is done routinely. Inadvertent misleading, promptly corrected, is not an issue; it is the system working. The House understands it if Ministers decline to answer, for example, on matters of national security or market sensitivity.

Too many members of the public already think that we are dishonest, but hitherto I have found in my 40 years in this House that most Ministers, in all Governments, are at pains to tell the truth. The sanction in the report reinforces and upholds Ministers’ high standards and shows the public that that is the case.

[Sir William Cash (Stone) (Con)]

The right hon. and learned Lady has referred to the wording “misleads”, which was in the original motion on 21 April 2022. That is not the wording of the resolution of 1997, which still pertains today and quite explicitly uses the words “knowingly misleads”. Does she not accept that there is a huge difference? That decision was made unanimously by the House and it is still in existence and still pertains.

[Ms Harman]

I think the Committee found on the evidence that Mr Johnson knowingly and deliberately intended to mislead the House.

Because he was Prime Minister, Mr Johnson’s dishonesty, if left unchecked, would have contaminated the whole of Government, allowing misleading to become commonplace and thus eroding the standards that are essential for the health of our democracy. Far from undermining Ministers, the report does precisely the opposite.

I want to say something about the press. This episode has shown that wrongdoing has not gone undiscovered and attempts to cover it up have failed, but it would have been undiscovered had not the press doggedly investigated. Many journalists played their part, and Isb want in particular to mention Pippa Crerar and Paul Brand. Democracy needs a free press.

The House sent this inquiry to the Privileges Committee without a Division. It unanimously endorsed the membership of the Committee. We have done the work we were asked to do. This is the moment for the House, on behalf of the people of this country, to assert its right to say loud and clear: “Government will be accountable. Ministers will be honest. There is no impunity for wrongdoing. Even if you are the Prime Minister—especially if you are the Prime Minister—you must tell the truth to Parliament.” I urge all Members to support the motion.

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[Sir Chris Bryant]

The right hon. Gentleman is absolutely right. I have looked around for some parallels for what can be done about a Member who has already left the House by the time the Privileges Committee, the Standards and Privileges Committee, the Standards Committee or the Independent Expert Panel has adjudicated. The only one I can find is Sir Michael Grylls, the former Member of Parliament for North West Surrey, who was involved in the Ian Greer-Mohammed al-Fayed cash for questions row in the 1990s. He stood down in the 1997 general election so he was not an MP by the time the Standards and Privileges Committee reported on him. It said, categorically, in relation to the question of whether lying to Parliament is a contempt that

“Deliberately misleading a Select Committee is certainly a contempt of the House…Were Sir Michael Grylls still a Member we would recommend a substantial period of suspension from the service of the House, augmented to take account of his deceit.”

That is precisely, following precedent, what the Privileges Committee has done in its report. The truth is that Mr Johnson, as Prime Minister, was a senior and long-standing Member of the House. It was not the first time he got into trouble with either the standards system in the House or the rules. He has shown absolutely no contrition. He chose to attack, intimidate and bully the Committee, which could indeed be a breach of the rules in itself. Everything he did fell far, far short of the standards that this House and the public are entitled to expect of any Member.

I just want to say a few words about the process. The House has always claimed, as the Leader of the House said in her excellent speech, exclusive cognisance; that is to say, apart from the voters and the criminal law, the only body that can discipline, suspend or expel a duly elected Member of the House is the House of Commons in its entirety. I still hold to that principle. It is why any decision or recommendation to suspend or expel a Member that comes from the Standards Committee or the Independent Expert Panel has to be approved by the whole House. It is also why the only way to proceed when there is an allegation that a Member has committed a contempt of Parliament, for instance by misleading the House, is via a Committee of the House and a decision of the whole House. That is why we have to have the motion today and had to have the Committee on Privileges. It cannot, I believe, be a court of law. It has to be a Committee of the House. I do not think some commentators have fully understood that, including Lord Pannick and some former Leaders of the House.

I say to those who have attacked the process that they should be very careful of what they seek. There are those who would prefer lying to Parliament to be a criminal offence, justiciable and punishable by the courts, but that would drive a coach and horses through the Bill of Rights principle that

“freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.”

So I am left feeling that those who attack the process simply do not believe that there should be any process for determining whether a Member has lied to the House. As I have said before, I kind of admire the personal loyalty, but I dislike the attitude because it is in effect an excuse for appalling behaviour.

[Sir William Cash]

I am most grateful to the Chairman of the Standards Committee. He and I took part in the debate, as he will well remember perhaps, on 21 April 2022. I raised the question of “knowingly misleads” because it was not included in the original motion, which was then passed, which led to the reference to the Committee on Privileges. In the course of the debate, I raised—I think with him directly, but he certainly made the remark, for which I pay credit—the fact that intention is at the heart of this question. If we knock out the word “knowingly”, we knock out the intention as well and that is a fundamental question of process on which I will, if I catch your eye Madam Deputy Speaker, want to refer.

[Sir Chris Bryant]

I am going to ferociously agree with the hon. Gentleman. I said earlier that Mr Johnson knowingly lied to Parliament and that is what the Committee has concluded. There was a point at which people thought they would only consider “recklessly” but they found that he knowingly, with knowledge aforethought, misled Parliament and was deliberately duplicitous. I think the hon. Gentleman’s point is destroyed—

[Sir Jacob Rees-Mogg]

rose—

[Sir William Cash]

rose—

[Sir Chris Bryant]

If the hon. Member for Stone (Sir William Cash) does not mind, I will give way to another Member.

[Sir William Cash]

On the point the hon. Gentleman was just making—

[Madam Deputy Speaker (Dame Rosie Winterton)]

Order. I think the hon. Member for Rhondda (Sir Chris Bryant) is giving way to Sir Jacob Rees-Mogg.

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[Sir Chris Bryant]

I am wrong; I apologise. However, it is certainly the case that the whole House agreed that membership, fully knowing everything that had been said up until that moment. Three members of the Committee had sat on a previous case in relation to Mr Johnson that came to the Standards Committee. The Parliamentary Commissioner for Standards had found against Mr Johnson, but we, the Committee, found in his favour. I therefore do not think that this was in any sense a biased Committee. Let me also say that anyone who thinks that Speaker’s Counsel, or, for that matter, Sir Ernest Ryder, who ran the whole of the tribunals service in England and Wales, would not stand up for a fair hearing and due process is misleading themselves, and doing so almost recklessly.

[Sir William Cash]

rose—

[Sir Chris Bryant]

I am tempted not to give way to the hon. Gentleman. I am very hopeful that he will have an opportunity to speak to the House fully a bit later.

Some people have attacked the process for a different reason, and I understand the nature of that attack. They say that Johnson won a general election, and they argue that only voters should therefore be allowed to remove him from office. I passionately disagree with that view, because I hold a different understanding of democracy. It

“does not mean, ‘We have got our majority, never mind how, and we have our lease of office for five years, so what are you going to do about it?’ That is not democracy, that is only small party patter, which will not go down with the mass of the people of this country.”

Members may recognise those words. They are not mine; they are Churchill’s, addressed to the Labour Government in 1947. He went on:

“there is the broad feeling in our country that the people should rule, continuously rule, and that public opinion, expressed by all constitutional means, should shape, guide, and control the actions of Ministers who are their servants and not their masters.”—[Official Report, 1 November 1947; Vol. 444, c. 206-7.]

I agree, and that is why I think it important to note that public opinion on this matter is extremely clear. Most people think Johnson lied. A few of them do not think that that matters very much, but most of them do. Most of them think that Ministers who lie should be removed and punished, and being truthful is the one quality that they seek above all else in a Member of Parliament.

Harold Wilson said, in a debate in the House when John Profumo had just been forced to resign for lying:

“The sickness of an unrepresentative sector of our society should not detract from the robust ability of our people as a whole to face the challenge of the future. And in preparing to face that challenge, let us frankly recognise that the inspiration and the leadership must come first here in this House.”—[Official Report, 17 June 1963; Vol. 679, c. 54.]

Leadership means taking a stance. Abstention is a failure of leadership. I believe that today is a good day for democracy. We have remarkably few checks and balances in our system, and the only real check is the collective conscience of the Members of this House. That is the burden of our elected office, and I pay tribute to Conservatives, and people of every party, who have had to face a difficult decision in relation to this. We exercise our conscience on behalf of our constituents. Edmund Burke said that the most important thing we owe our constituents is our conscience. Thereby we tarnish or we burnish the reputation of Parliament. So let us assert today that no one is above the law and the rules apply to all, because every abstention is another excuse. I repeat Wilson’s words: the leadership must come first here in this House.

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[Sir Jacob Rees-Mogg (North East Somerset) (Con)]

It is perfectly reasonable to challenge the views of Select Committees of this House. It is neither eccentric nor, indeed, rare, so I should like to start with some of the things that I think are most contentious in the report, bordering on erroneous.

Let us start with paragraph 48, which makes reference to the fixed penalty notice received by Mr Johnson for the birthday party. It seems to think that the fixed penalty notice is, in fact, an admission of guilt. But in R v. Hamer, Lord Chief Justice Thomas said:

“It is quite clear that the issue of a notice is not a conviction. It is not an admission of guilt nor any proof that a crime has been committed. The scheme of the Act makes that clear. Any person reading the form would plainly understand that it is not to be regarded as a conviction and will not be held against him save in the respect mentioned. It seems therefore clear, both as a matter of the statutory scheme and as a matter of what a person accepting such a notice would reasonably be led to believe, that he was not admitting any offence, not admitting any criminality, and would not have any stain imputed to his character.”

Yet this report, against what a Lord Chief Justice says and against what is a principle of our criminal law, decides to impute a stain upon his character. It seems to me that this is quite clearly a deliberate attempt to take the most unfavourable interpretation of Mr Johnson’s activities, but this is not the only contentious paragraph.

Let us go to paragraph 83, which decides, as if it were an Elon Musk chip, to insert itself in the brain of Mr Johnson to work out what he must have thought at a particular moment. Well, I am glad to say that, as far as I am aware, Mr Johnson does not have one of these little chips stuck in his brain for the Committee’s benefit. Paragraph 83 says

“we conclude that Mr Johnson is unlikely to have been unaware”.

That is an obscure use of a double negative to try to impute malfeasance to somebody where the Committee cannot prove it. The Committee assumes something and imputes something because it wants to come to a particular conclusion.

[Sir William Cash]

Does my right hon. Friend agree that the very word “disingenuous,” which is used in the context of this report, is in the same category as the things he has just mentioned?

[Sir Jacob Rees-Mogg]

I entirely agree with my hon. Friend, and I refer him further to paragraph 182, on the line to take. Mr Johnson, as Prime Minister, was advised before Prime Minister’s questions to say that the rules had been followed at all times, and the report goes into great detail as to the authority for that advice—who had told him, whether they were senior enough and whether it was right—but it does not ask whether other Ministers were given the same briefing. Was this the cross-Government line to take, approved, as far as I could be aware, by all officials? Well, I can tell the House that, prior to business questions for the weeks when this was at the forefront of public interest, I was given the briefing that the rules had been followed at all times, with “at all times” emphasised. The only reason I did not say this to the House is because the hon. Member for Bristol West (Thangam Debbonaire), the shadow Leader of the House, never had the wit to ask me the right question. If she had, the cross-Government line to take was absolutely clear, yet this report concludes that the Prime Minister, as he then was, was not advised by senior enough people—that they were involved in the press office. The idea that Ministers are not advised by people who work in communications shows quite how long the Opposition have been out of government.

Based on this tendentious reading of the facts, we come to the 90-day sanction. It is a vindictive sanction, it seems to me, that the Committee cannot implement because Mr Johnson has left Parliament, so the Committee goes from the vindictive to the ridiculous by not allowing him a parliamentary pass. Of all the trivial sanctions that could be imposed, that seems to be the most miserable. But the Committee emphasises in paragraph 229 that this sanction has been made more savage, more brutal and more vindictive because Mr Johnson impugned the Committee and undermined the democratic process.

On what basis? Is it thought that this House, when it comes to a conclusion, must be obeyed? Is it the case that we must not criticise the Dangerous Dogs Act 1991 because it was passed by this great and noble House, or are we, in fact, allowed to criticise, as a fundamental of free speech, that which happens to us, that which is reported about us and that which is said of us? When a person is in court, they are allowed to say that the court has made a mistake. The protections of the junior courts, in which juries sit, are rightly very strict, but we can still say that the court has got it wrong. Indeed, we are allowed to say a court has got it so wrong that we may go to appeal. We do not have to kowtow but, for some reason, the Privileges Committee thinks it is in communist China and that we must kowtow. The report goes on to say that Mr Johnson was

“complicit in the campaign of abuse and attempted intimidation of the Committee”

without a single, solitary shred of evidence. It is pure assertion.

This leads me on to the issue of partiality. I was most intrigued by the response of the right hon. and learned Member for Camberwell and Peckham (Ms Harman) to my intervention. She said that she had told the Government, that it had all been approved and that it was fine and dandy. I refer her to paragraph 12 of her own report:

“Our guiding principles included being transparent.”

We suddenly discover, in this transparent approach, that there was a secret agreement that her involvement was all right. Well, I was in the Government at the time, and I never heard that this had happened, so it seems to me that it is important to examine the position in which the right hon. and learned Lady found herself. I note that the Committee does not do this in annex 1, which purports to answer appendix 3. I am sure the House is listening and following very carefully, but appendix 3 is the letter of Mr Johnson in response to the draft report. Fascinatingly, although paragraph 6 of appendix 3, on page 100, questions the impartiality of the Committee, annex 1 ignores that. Annex 1 answers lots of other points, but it rushes over this point, perhaps because the Committee thought it was on relatively thin ice.

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[Sir William Cash (Stone) (Con)]

The original motion, which was discussed on the Floor of the House on 21 April 2022, in which debate both I and the hon. Member for Rhondda (Sir Chris Bryant) happened to speak, should never have been allowed through by default, as I said at the time. I cannot understand how it happened and I have never had a proper explanation. What I do know, as I said earlier to the hon. Member, to others and to the Chair of the Committee, is that it uses the word “misleading” but not the words “knowingly misleading”. There is a vast difference. It is about intention. It is about whether or not Boris Johnson could have lied. That is the crucial issue.

I put down an early-day motion immediately after the Privileges Committee produced its process report, on 21 July 2022. The Committee itself drew attention, as I have, to the divergence from the established convention of deliberately or knowingly misleading the House—I made that point; I am afraid the Committee did not—as set out in the unanimously agreed 1997 resolution of the House on ministerial accountability. My motion therefore called for the 21 April motion to be rescinded. I have not changed my mind, especially as the proceedings have unfolded. My concern is also that the procedure followed has pursued a course that could even tend to undermine democratic and ministerial accountability because that is contained in, fundamentally, a unanimous resolution of 1997, which is still very much alive and kicking. Every day, the words “knowingly misleads” apply to Ministers who speak from the Dispatch Box. It was well said by the great constitutional lawyer Maitland that

“justice is to be found in the interstices of procedure.”

Thus, the procedures should reflect natural justice and the right to fairness in proceedings. I know that the Chair of the Privileges Committee has chaired the Human Rights Committee. One of the most fundamental questions in relation to the Human Rights Act 1998 and the European convention on human rights is fairness in proceedings and trials.

The Committee of Privileges is uniquely concerned with personal accusations and complaints, as compared with all other Select Committees, which concentrate largely on departmental policy. Natural justice therefore requires cross-examination by counsel. The rule of law requires that, where there is an accusation of misconduct or of lying, particularly by Members of the House, an individual should be entitled to have his counsel cross-examine the evidence and obtain the names of potential witnesses. Indeed, counsel can be heard in person with the leave of the House and I truly believe that the Committee of Privileges could and should have proposed that itself.

I have already dealt with the question raised earlier with respect to the admission. I pay tribute to the hon. Member for Rhondda for saying in the debate on 21 April 2022 that “intention” is essential. I am glad that he reconfirmed that point today. In my view, intention cannot be excluded by any presumption of strict liability. That, as I understand it, was considered by the legal adviser to the Committee and he came to the view that strict liability applied. I do not agree, but that is a personal view and it is a view that I take as a lawyer. I do not think that strict liability is consistent with ensuring that the word “intention” is applicable in such circumstances.

[Sir Chris Bryant]

I have two very quick points. The hon. Gentleman has referred to motions of the House. He will be aware that there is also a motion of the House that says that a Member will always represent themselves and not be represented by legal counsel. Therefore, if we are going to barter off motions, that is also the will of the House universally expressed. However, the bit I really cannot understand is why he goes on about this intentionality point, when page 7 of the report says that Boris Johnson was guilty of contempt by “deliberately misleading the House”. That is intentionality. They have proved it.

[Sir William Cash]

I will leave that for a moment. I have more to say on that very question.

Only by cross-examination of witnesses can truth be properly established. The 1997 resolution went through unanimously after a series of many Select Committee reports in the 1990s following the arms sales to Iraq saga. There were intensive cross-party discussions and, eventually, John Major and Tony Blair insisted on the words, “knowingly misleads” in the resolution that was unanimously passed; the House agreed to it. That resolution, as I have said repeatedly, prevails to this day. Therefore, no Minister shall be expected to resign, or be forced to resign, unless that can be proved.

The motion of 21 April deliberately left out the word “knowingly”. It was a Labour bear trap for Boris Johnson and the Government. Changing this fundamental principle through a new precedent would, in my view, affect all Governments and democratic accountability in future, and would, incidentally, apply to civil servants, who are also governed, under the civil service code of conduct, by the words “knowingly misleads”. They are the people who have to put together the answers to the questions that are raised on the Floor of the House and, for that matter, in speeches, too.

[Sir Julian Lewis]

My hon. Friend is, indeed, a true friend and, normally, we find ourselves in the same Lobby under heavy crossfire, but I want to ask him a simple question that I would have asked my right hon. Friend the Member for North East Somerset (Sir Jacob Rees-Mogg) had he found time to give way to me. Given that he is so hostile to the report of the Committee, will he do people like me a favour and divide the House today, so that we can have the opportunity to cast our vote, either against the report, as he wishes to do, or in favour of it, as I wish to do?

[Sir William Cash]

My right hon. Friend is a very good friend of mine—he really is—as indeed of some Members on the other side of the House. I would simply like to say this. I am not in control of whether there is going to be an amendment. [Interruption.] No, I am making the point that, as far as I am concerned, there is an issue here that is being debated. Many people are absenting themselves for what they believe to be very good reasons. I am simply taking the view that somebody may decide that they are going to divide the House and I am leaving that as an open question for the time being. However, the statements made by Boris Johnson on the Floor of the House—

[Pete Wishart]

Will the hon. Gentleman give way?

[Sir William Cash]

Not just now, thank you. I want to get on to this other point.

The statements made by Boris Johnson on the Floor of the House were in fact about legal interpretation of the covid rules and the guidance in respect of No.10. The Justice Committee conducted an excellent inquiry, reporting in September 2021, on the meaning and effect of the covid rules and guidance, several months before partygate emerged as an issue. That report is of great importance because it endorsed the incisive legal analysis of the former counsel for domestic legislation, the present Parliamentary Commissioner for Standards. He highlighted the legal uncertainty of the regulations and guidance, stating in evidence to the Committee that

“there has been a lack of clarity as to what regulations applied to specific situations at what times…The combination of regulations and guidance, and the lack of clarity as to where one starts and the other stops, have been recurring themes of the coronavirus regulations.”

I strongly recommend that Opposition Members listen to that. It is very important in deciding whether a person can lie in those circumstances, because the same applied to subsequent regulations. The Parliamentary Commissioner for Standards emphasised that that lack of clarity undermined the rule of law. That could not have been more apparent than in the differences in approach between that of the Durham police authority on the Barnard Castle incident and that taken in relation to the Leader of the Opposition and beer drinking at a particular event, which led to no action and, on the other hand, the Metropolitan police in relation to No. 10, which did lead to action. The essential point about all of this is that no one, not even the lawyers, knew what the law was. The Parliamentary Commissioner for Standards made that crystal clear. Even the civil servants who drafted the regulations were fined for non-compliance.

I now come to the fundamental issue of whether Boris Johnson can be accused of knowingly lying to the House. It is clear from what I have said that the accusation that the former Prime Minister had deliberately or knowingly misled that House, as set out in the current and existing 1997 resolution, put together by Tony Blair and John Major and endorsed unanimously by the House as a whole, can only be derived from a proper legal interpretation of the words on which Boris Johnson was relying and of the legal advice he had received inside No. 10 on each occasion on which he is accused. I find no publication of that legal advice in this report. Boris Johnson therefore, in my view, cannot have been found guilty of knowingly misleading Parliament if no lawyers, let alone the Prime Minister, who is not a lawyer, could get the legal position right. The regulations and the guidance entirely lacked legal certainty. Therefore the Prime Minister could not have knowingly misled the House.

Why, as I believe to be the case, did the Committee not obtain evidence from those lawyers in No. 10 who provided legal advice when it was so crucial? If it did, why has that evidence apparently not been published? Boris Johnson cannot therefore have knowingly misled the House, and that should have been the end of it. I do not see how contempt can be attributed in these circumstances, for he simply could not have knowingly misled Parliament on any rational interpretation of the word “knowingly”, which the original motion left out.

Those who argue that now the report has been published it is all over and done, and those who say that the dogs bark but the caravan moves on, miss the wood for the trees. The caravan of this House, having moved on, will certainly come back. Then the dogs will not merely bark, but they will bite, and Parliament will be the victim, and it is likely that any future Labour Government will get caught up in it—although heaven forbid one should ever be elected. I therefore do not approve of this motion.