Dr Sophie Gallop, Senior Lecturer NLS https://www.ntu.ac.uk/staff-profiles/law/sophie-gallop
It has been an eventful few weeks in British politics. The former First Minister of Scotland and SNP leader from 2014 to 2023 Nicola Sturgeon was arrested, and Boris Johnson, Nadine Dorries, and Nigel Adams announced their resignations from Parliament. Furthermore, the Prime Minister Rishi Sunak and his predecessor Boris Johnson had a public clash over Johnson’s nominations for the House of Lords. This blog addresses the role of the Privileges Committee, a Constitutional body which played a significant part in these recent events as they unfolded.
The Privileges Committee, or the Committee for Privileges and Conduct, is a Parliamentary Committee made up of a cross party membership of seven backbench members. It is currently composed of four Conservative MPs, two Labour MPs, and a Scottish National Party MP, the representation roughly reflecting the present composition of the House as a whole. It is convention that the Privileges Committee is chaired by an opposition MP. The purpose of the Committee is to investigate potential incidents of contempt of or breach of privilege by a Member of Parliament. The Committee reflects the principle of Parliamentary Privilege, whereby what happens in Parliament is a matter for control by Parliament (a principle known as ‘exclusive cognisance’). On that basis, misbehaviour in Parliament is dealt with by Parliament (in this case the Privileges Committee) and ensures that the supremacy of Parliament is protected as the Courts and Government cannot interfere with Parliamentary affairs. The Privileges Committee will only carry out an investigation only when a matter is referred to it by the House of Commons, and each investigation is carried out on a case-by-case basis.
What is meant by a contempt or breach of privilege is somewhat vague – the MP’s Guide to Procedure itself acknowledges that there is no single definition. However, a breach is understood as an ‘attempt to interfere with one of the unique rights and powers that belong to Parliament’, whilst contempt of privilege is akin to contempt of court (for example, refusing to appear before a Select Committee). When completing an investigation, the Privileges Committee will consider whether there has been a breach of privilege or a contempt of privilege by looking at the ‘balance of probabilities’.
After completing an investigation, the Privileges Committee will report its conclusions as to whether there has been a breach or contempt of privilege to the House of Commons. Importantly, the Committee only has the power to issue a report – this will not trigger anything but a debate in the House of Commons. It is then for the House of Commons to find whether or not there has been a contempt or breach of privilege. In its report to the House, the Privileges Committee will also recommend any sanctions to be taken, and these can include a range of different measures. Possible recommendations can include: that there be no sanction at all, that the Member of Parliament give an oral or written apology, that the Member of Parliament be suspended from the House of Commons, that the Member of Parliament be admonished by the House, or that the Member of Parliament be expelled from the House of Commons.
The Privileges Committee was tasked with investigating whether or not Boris Johnson misled the House of Commons, whether he committed a contempt of the House, and whether this was inadvertent, intentional, or reckless. The issue was whether Mr Johnson told the truth to Parliament, to the best of his knowledge, about the compliance of 10 Downing Street with Covid-19 rules and guidance. The Privileges Committee investigated the matter after the House of Commons unanimously passed a motion to refer the matter onto the Privileges Committee on the 21st April 2023.
There were three stages to the investigation. Firstly, the Privileges Committee examined written evidence. At this point, the Committee sought documents and written evidence relating to events at 10 Downing Street and the Cabinet Office, as well as briefing documents given to and requested by Boris Johnson relating to those events. Secondly, the Committee requested oral evidence. This involved Mr Johnson giving three hours of televised oral evidence to the Privileges Committee, accompanied by his legal team led by Lord Pannick KC. Lord Pannick is described as ‘one of the UK’s mostly highly regarded advocates’ and interestingly he previously acted for Gina Miller before the Supreme Court when it found that Boris Johnson had unlawfully prorogued Parliament. The third and final stage of the investigation was the ‘determination’ stage. Earlier this week, Boris Johnson was sent a ‘warning letter’ by the Committee. In this document the Committee set out the criticism being made and its factual basis, invited submissions as to whether the criticism was appropriate, confirmed the allegation determined against Mr Johnson, and stated the Committee’s recommendation as to sanctions.
In response to the letter from the Privileges Committee, Boris Johnson announced his resignation. According to Mr Johnson the Committee is the sole reason for his resignation, and he announced his decision less than forty-eight hours after receiving the ‘warning letter’. In his resignation statement, Mr Johnson opined that the Privileges Committee had made clear that it was ‘determined to use the proceedings against (him) to drive (him) out of Parliament’. He argued that the objective of the Privileges Committee was ‘from the beginning to find (him) guilty, regardless of the facts’.
In his discourse, Mr Johnson levelled various accusations against the Privileges Committee, calling it ‘a kangaroo court’, a ‘witch-hunt… to take revenge for Brexit’, and concluded that it had set a ‘dangerous and unsettling precedent’. His comments do not come as a complete surprise, given that during his oral evidence to the Committee Mr Johnson had refused to guarantee that he would accept its findings. However, this defiant stance seems to have poured fuel on the fire, and the Committee has considered this as part of their investigation.
In their report, the Privileges Committee determined that Boris Johnson deliberately misled the House, and therefore that he had committed a serious contempt of the House. However, they also considered that Mr Johnson breached the confidentiality imposed by the Committee when he made the public statement above, which they concluded was a ‘very serious contempt’. The Privileges Committee also concluded that Mr Johnson had impugned the Committee thereby undermining the democratic process of the House and was complicit in the campaign of abuse and attempted intimidation of the Committee. With respect to these findings, the Privileges Committee noted that if Mr Johnson was still a Member of Parliament, it would recommend that he should be suspended for 90 days.
The findings of the Committee raise an interesting issue – can there be valid criticism of Select Committees and their findings, or will any criticisms amount to a breach or contempt of Privilege? The punishment of Boris Johnson for his criticism of the Privileges Committee and its decision, which cannot be appealed or subject to Judicial Review, is potentially concerning. How can the Privileges Committee be held to account if it cannot be criticised or its decision appealed? The position of the Committee seems to be that some criticisms are acceptable, and others are not, and it seems to have drawn a delineation between procedural criticisms (which may be acceptable), and attacks against the Committee itself, and the ‘integrity, honesty and honour’ of its members (which are unacceptable and, in this instance, constituted a contempt). This position, however, means that other Members of Parliament such as Jacob Rees-Mogg and Brendan Clarke-Smith, who have also levied criticisms against the Privileges Committee, could also be susceptible to a finding of contempt of Privilege in the future. Whilst this seems unlikely as their conduct would have to be referred onto the Committee by the House of Commons, at this strange and eventful time in politics it might be naïve to write off the possibility.
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