If there is one thing Boris Johnson is good at, its spinning yarns. And as his premiership draws to a close we can already see the shape of the story he and his supporters want to tell: the lost prince, the giant cut down in his prime by a conspiracy of political pygmies.
The first half of this will be bolstered by the torrid time his likely successor is going to have in the months ahead, caught in the jaws of spiralling inflation and the energy crisis. Neither of these would have been forestalled by keeping the Prime Minister in post, but his years will shine in comparison regardless.
As for the second, the supposed betrayal of his Conservative colleagues losing confidence in him and resigning en masse is reinforced by the idea that the House of Commons is out for his blood.
The enquiry by the Committee on Privileges, his supporters insist, is stacked against him. It is defying precedent to hold him to an unreasonable standard. It shouldn’t even be proceeding at all, given that he has now resigned. Where is the public interest in raking a mere backbencher – as Johnson will soon become – over the coals?
Such views are not wholly confined to the ranks of those ultras behind the (extremely misguided) campaign to force Johnson onto the leadership ballot. It has been offered support, albeit of a rather delphic character, from no less than Vernon Bogdanor, who has declared in the Daily Telegraph that the Committee’s approach – set out in a report published last month – as “not consistent with natural justice”.
Meanwhile a group of right-wing MPs, including Sir Bill Cash and Sir Iain Duncan Smith, have put down an Early Day Motion which also casts doubt on the Committee’s processes, before concluding “that the Resolution passed by the House of 21 April 2022 is now unnecessary and should be rescinded”.
The charge that the procedures of the House are being misused to persecute an outgoing prime minister are extremely serious, not least because, as Bogdanor points out, a suspension could open up the prospect of a recall election and cost Johnson his seat. Johnson’s loyalists allege the “pursuit” of their man is bad for democracy.
But can such charges be substantiated? To borrow the Professor’s guarded language, “there must be some doubt” about that. Let us look first at the technical basis for the allegation, and then the broader political concerns.
Procedure
For starters, there seems to be some confusion about the different procedures involved, and how they relate to previous precedent. Bogdanor, in particular, cites a case from the 1990s wherein “the House” accepted that three ministers had not deliberately misled it. Yet the Committee is proceeding on a ‘strict liability’ basis, meaning contempt can be found without intention.
This, he claims, is “lowering the bar”. But whilst he mentions the potentially terminal political consequences for Johnson of triggering a recall ballot, Bogdanor doesn’t quite get round to explicitly joining the dots.
As well he shouldn’t. Annex Three of the Committee’s above linked report is a detailed argument by Eve Samson, the Clerk of the Journals. It is worth reading in full but her core argument (found in paragraph 15) is thus:
“It is for the Committee and the House to determine whether a contempt has occurred and the intention of the contemnor is not relevant to making that decision. Intent has been considered relevant when a Committee has been considering whether or not there should be penalties for a contempt, or the severity of those penalties; it is best thought of as an aggravating factor in respect of remedy rather than a component part of the allegation.”
Put simply, the Committee has to determine three things. First: was the House misled? Second, did that interfere with the functioning of the House – thus constituting contempt? Third, to what extent did the subject of the inquiry knowingly mislead the House?
The point which some of Johnson’s defenders seem to have missed is that a finding of contempt does not, in itself, carry some terrible penalty. It is difficult to see how MPs could conclude that the Prime Minister unknowingly mislead the Commons and still recommend a harsh punishment – and more difficult yet to see MPs ratifying it.
This last is important because it is ultimately for the House of Commons to decide what to do with the Committee’s findings, just as it was the House of Commons which set the Committee on its task in the first place. The next prime minister could whip Conservative MPs to call off the inquiry, if they so wish.
(Others claim the lowering of the bar comes from the Committee not adopting as its frame of reference the Ministerial Code; Sir Ernest Ryder, its independent legal adviser, sets out here why that is a “completely separate process” that pertains to government, not Parliament.)
Meanwhile the Committee does have one very important question to answer: how will it assess whether or not Johnson ‘knowingly’ misled the Commons? Will acting upon advice received be sufficient to establish his good faith – or will they take a more expansive view of his responsibility to interrogate what he is told?
Given the cloud of suspicion hanging over the process, it is important they are very clear about this.
Overall, however, nobody attacking the process seems to have produced anything like an adequate response to the case made by Samson and Ryder.
Politics
Of course, the dry mechanics of parliamentary procedures do not operate in a vacuum. There is always politics to consider. Indeed, it has already made its presence felt: Chris Bryant resigned as the inquiry’s chairman after saying he thought Johnson had lied; his successor, Harriet Harman, faces calls to do the same.
To say the least, such lapses of judgement are unfortunate where MPs are supposed to be taking a detached, ‘judicial’ view and the legitimacy of the process is being impugned.
Yet the Prime Minister’s defenders are not above asking the Committee to take a political stance themselves, for example when they suggest that it should factor the prospect of a recall election into its judgement. This smacks of the absurd suggestion, advanced by Johnson’s allies during Partygate, that the police should refrain from charging him because of the potential political consequences.
In both cases, the task of the investigators is to find the facts; let the political chips fall where they may. (Although both should be painstakingly transparent about their decision-making.)
The disposition of those chips will ultimately be up to the House. As acknowledged by Cash’s EDM, it is up to Parliament whether to act on the Committee’s eventual recommendations or to call the inquiry off altogether. Much of the campaign seems likely to be aimed at pressuring the new leader to do exactly that.
Perhaps they will. Johnson’s departure as prime minister provides some cover for the move, and it might shore up his successor’s support amongst his loyalists.
But the danger of calling off the inquiry is that it simply ends up looking like a re-run of the Owen Paterson fiasco. As I explained in March, there too MPs acting in good faith were prepared to defend the Government’s behaviour on the basis of real procedural complaints. It was a political disaster regardless.
Calling off the inquiry might allow a new leader to draw a line under the Johnson era. It might alternatively demolish any hopes of building a firewall between their reign and his, and saddle them with all his baggage. Labour will spin it as a cover-up; there is a real danger the public will agree.
Where the balance of probabilities between those outcomes lies is an entirely political judgement and the system, rightly, leaves it for politicians to make – even if perhaps they may sometimes wish they could, in fact, hide behind a thicket of more rigid procedure.