Ronnie Clancy KC: Opinions of counsel for Boris Johnson over Partygate

Mr Johnson has obtained an opinion from eminent counsel – Lord Pannick KC and Jason Pobjoy – which is critical of the approach which the committee is following in fulfilment of their remit to determine whether he is guilty of contempt of Parliament.

The opinion was instructed by Mr Johnson while he was still prime minister. He published it on the UK government website before he left office on 6 September last year. In their opinion counsel acknowledged upfront that the committee proceedings are not susceptible to judicial review.

They say: “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……..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.”

This is an interesting proposition. The privilege afforded to parliamentary proceedings is itself a rule of law which the courts will enforce. In a rugby match the rules of football hold no sway. On the other hand it is of course entirely legitimate to question whether the committee is giving Mr Johnson a fair shake. The opinion was useful to Mr Johnson and his supporters in their political manoeuvering ahead of a possible finding of contempt. Hence its publication.

Four days before he left office Mr Johnson sent a copy of the opinion to the committee asking them to treat it as a formal representation on his behalf. The committee responded to this representation by issuing a report on 8 September containing a point by point rebuttal of the criticisms contained in counsel’s opinion. Mr Johnson then obtained a further opinion from the same counsel dated 11 October responding to the committee’s rebuttals. Counsel stood by their main arguments however the second opinion revealed that several points of contention on procedural fairness first raised by counsel had to some significant extent been resolved in whole or in part by steps taken by the committee to promote a fair hearing. Whether or not Mr Johnson gets a fair hearing remains to be seen.

Mr Johnson did not publish the second opinion. On 6 February 2023 the Cabinet Minister Oliver Dowden told another Commons committee (PACAC) that the government does not publish its legal advice save in exceptional circumstances. He said that there were such circumstances in relation to the first opinion without specifying what they were. He said that the non-publication of the second opinion was in line with the policy. This is straight out of Yes Minister. The only sensible conclusion is that whoever was controlling these events published the first opinion because it was very favourable to Mr Johnson in a political sense but withheld the second one because it was less useful to him. Also, according to its terms the first opinion was given to “the Prime Minister” but by the date of the second opinion Mr Johnson was out of office. In what meaningful sense was that government legal advice covered by the non-disclosure policy?

The British public are paying Mr Johnson’s legal costs which have already exceeded £200,000. The Permanent Secretary to the Cabinet Office told the same PACAC hearing that this is normal and in accordance with “an established precedent, across multiple administrations, that former ministers can be supported with legal representation after they have left office when the matters relate to their time and conduct as a minister”.

He said that the decision had been taken by his predecessor, another civil servant, without any need for a ministerial direction although “there was certainly consultation with ministers throughout this process, who also were of the view that it was appropriate”.

FOI requests have been submitted to the Cabinet Office requesting details of the precedents for paying the costs of ex-ministers, on the detail of ministerial input and on who asked that these expenses be covered. Those requests were rejected within two hours of their submission on the ground that the FOI Act does not require the government to “create new information”. As matters stand we simply know that the decision to meet the open ended costs payable to very expensive solicitors and counsel was taken while Mr Johnson was still Prime Minister.

Mr Johnson’s salary as an MP and his ministerial pension put him far beyond the upper limits for civil legal aid. Despite his astronomical earnings as a public speaker since leaving office hard pressed taxpayers are footing his eye-watering legal bills. It is a bonus for him that the legal advice he has received so far can be used to bolster his political defence. As anyone with a rudimentary knowledge of public law would know, it would be of no use to him in a court of law.