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30 April 2022

Why not make Boris Johnson testify about partygate under oath?

Select committees rarely administer the oath to witnesses, but in the case of whether the Prime Minister misled MPs there are good reasons to do so.

By Alexander Horne

The question of what should happen to Boris Johnson in respect of partygate has moved from being a legal one (namely whether he would be issued with any fixed-penalty notices) to a political one. On 21 April, having received at least one fine, the Prime Minister was referred to the Privileges Committee by MPs, without any opposition from Conservatives. When that committee meets to consider the issue, it will have to determine whether the Prime Minister misled the House of Commons by claiming, among other things, that no Covid rules were broken at Downing Street and that “the guidance was followed and the rules were followed at all times”.

The committee will not be able to start work straight away, as it is required to wait until the inquiries being conducted by the Metropolitan Police have been concluded. It may also wish to have access to the final, unredacted report into the parties by Sue Gray, a civil servant.

However, the committee, which is made up of MPs led by the Labour MP Chris Bryant, is a powerful body and when it does commence its inquiry, it has several useful powers under the standing orders of the House. These include powers to “send for persons, papers and records”; to order the attendance of any MP before the committee; and to require that specific documents or records be supplied to the committee by that MP. Thus, the committee may be tempted to hear from the Prime Minister himself — and it would be wise to do so.

While much of the press commentary about partygate has focused on potential breaches of the law, and the ministerial code, there is also a relevant resolution of the House, which was passed in 1997 and remains in force. It relates to ministerial accountability to parliament and contains two pertinent provisions. The first provides that “ministers who knowingly mislead parliament will be expected to offer their resignation to the Prime Minister”. This is in the same terms as the ministerial code.

The second provision says that “it is of paramount importance that ministers give accurate and truthful information to Parliament, correcting any inadvertent error at the earliest opportunity”. This may well prove more problematic. David Allen Green, the lawyer and commentator, has argued that, if and when the Sue Gray report is published, or the briefing given to the Prime Minister for the Metropolitan Police inquiry is disclosed, it may become plain that the Prime Minister did not correct his earlier assertions. Some might think that the obvious time to correct the record was (at the very latest) on receipt of the original Sue Gray report.

How is the committee to get to the bottom of all of this? I have often argued that Parliament is not a court and that we should be wary about how much power is handed to select committees to act like one. However, this is a case in which the ultimate question is whether the Prime Minister effectively misled parliament. It is notable that while the Prime Minister was denying that any parties took place, other government departments, such as the Department for Education, put out clear statements acknowledging that gatherings had occurred and effectively drew a line under the affair. The Prime Minister took a very different approach.

In those circumstances, while the Privileges Committee generally sits in private, I would suggest that it might, unusually, wish take live public evidence from the Prime Minister. A public session would be of benefit both to parliament and the PM: it would ensure transparency and could help to combat accusations of a whitewash, whatever the outcome. In addition, I would suggest the Committee also take his evidence under oath.

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Committees rarely administer the oath to witnesses, although it has happened in recent years. The Home Affairs Committee chose to take evidence under oath in respect of its inquiry into child sexual exploitation in Rotherham. The Public Accounts Committee also controversially administered the oath to the general counsel and solicitor to the Inland Revenue in 2011. This practice was criticised by parliamentary officials, but principally on the basis that it was for ministers, and not civil servants, to be accountable to parliament. This is a very different matter.

While administering the oath may appear to be just a theatrical flourish for the cameras, it can have very serious consequences. The giving of false evidence under oath is not only punishable as a contempt of parliament, but also as an offence under the Perjury Act 1911. It is a serious crime, punishable by up to seven years imprisonment.

This tactic might allow MPs to conduct their inquiries with rather more vigour, and it would also raise the stakes for the Prime Minister, who would know that should he be anything other than frank with the committee, then he could potentially be subject to considerable penalties (which would be imposed by a court, rather than subject to the vagaries of political fortune).

In some respects it seems remarkable that this issue has dragged on for so many months. Nonetheless, the greatest threat to the Prime Minister may well lie ahead and he would be well advised that the question of misleading parliament has the potential to be much more serious than the matter of the fixed-penalty notices.

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