On 21 April 2022, the House of Commons passed a motion tabled by the leader of the Labour Party, calling for the prime minister, Boris Johnson, to be investigated for having potentially misled parliament.  

This explainer sets out how the investigation will work, and the kinds of questions that the investigation will need to address.  

What is the prime minister being investigated for? 

The prime minister is being investigated for having potentially deliberately misled parliament in statements that he has made in the House about alleged breaches of lockdown rules in Downing Street – something that could constitute a contempt of parliament. 

This is a separate inquiry to those being conducted by the Metropolitan Police, and by the senior civil servant Sue Gray, into ‘partygate’.  

Who is the investigation being conducted by? 

The investigation will be conducted by the Commons Privileges Committee. This is a cross-party committee tasked with the investigation of potential contempts of parliament and breaches of privilege.  

The Privileges Committee has seven members (including the chair). Conservative MPs are in a majority on the committee, with four MPs. There are two Labour MPs (one of whom – by convention – chairs the committee), and one SNP MP. The balance of the committee reflects the broader balance of parties in the House of Commons as a whole.  

The Privileges Committee is separate from the Standards Committee. From 1995, when the Commons Standards system was established, there was a single Standards and Privileges Committee, but the two were split in January 2013 to allow non-MP members, known as lay members, to be appointed to the Standards Committee. The two committees now have the same chair and MP membership but different remits: Privileges deals with issues of privilege (the special protections afforded to the House of Commons to enable it to do its job) and looks into allegations these privileges have been impeded – offences known as contempts of parliament. The Standards Committee deals with the MPs’ Code of Conduct – adjudicating and determining sanctions for any cases of misconduct referred to it by the independent Parliamentary Commissioner for Standards – and oversees the Commons standards system.  

Why has the chair of the Privileges Committee recused himself, and what does this mean? 

Although the Conservatives have a majority on the Privileges Committee, it is chaired by Chris Bryant, a Labour MP. The Standing Orders – the Commons’ rules – set out that the Privileges Committee must be chaired by an MP from the official Opposition. This is to avoid any perception that the governing party might use its majority to influence the scrutiny conducted by the Committee. 

Shortly before the Commons agreed to refer the prime minister to the Committee for investigation, Bryant wrote a letter to MPs informing them that he would recuse himself from any such investigation. This is because of Conservative concerns about previous statements he had made in the media about the matter, and Bryant’s desire that “the House be seen to proceed fairly without any imputation of unfairness and that the whole House have confidence in the Committee of Privileges’ proceedings.” 

In practice, this will mean that Bryant will not chair or be involved in the committee’s proceedings on the investigation. It will be up to the other members of the Privileges Committee to decide how they wish to move forward, and which of the other MPs on the committee will act as chair. Other business before the Privileges Committee will continued to be chaired by Bryant. There has been some suggestion that an alternative Labour MP will join the committee for the duration of the investigation, although they will not act as temporary chair – but this has yet to be confirmed. 

What is the timetable for the investigation? 

The investigation may not begin for some weeks or even months. The motion passed by the House of Commons states that the Committee will not substantively begin its inquiry until after the Metropolitan Police has concluded its investigation. In a statement to the House informing MPs that the government would no longer oppose the motion, the Leader of the House also said that the government had been assured by Labour that the Committee’s investigation would not begin until after Sue Gray completed her inquiry, although the publication of her report is expected to follow soon after the Met completes its work. It is not clear when this will be.  

It will be up to the Committee to decide how much time they wish to take for their inquiry.  

What will the Privileges Committee be able to do as part of its investigation? 

The Committee has the power to call for evidence – including documents or photographs taken at the various Downing Street events under investigation. It could also seek to take evidence from witnesses including  the prime minister. This would provide him with an opportunity to set out his version of events, although the Committee could not compel him to attend.  

What will happen once the Committee has finished its investigation? 

Once the Committee has concluded its investigation, it will decide whether it believes that the prime minister deliberately misled parliament, and therefore committed a contempt. If applicable, it will also recommend what kind of sanction the prime minister should face.  

The Committee will report its findings and recommendations to the House of Commons. All MPs will then vote to ratify or disagree with their conclusions and any recommended sanctions.   

What kinds of sanctions might the Committee be able to recommend (if applicable)? 

If the Privileges Committee concludes that the prime minister deliberately misled parliament, there are a range of possible sanctions that it could recommend. These could include suspension from the Commons for a number of days. A suspension of 10 sitting days or more recommended in a report from the Committee on Standards would trigger a petition under the Recall of MPs Act 2015, but a similar recommendation by the Privileges Committee would not have the same effect. 

Neither the Privileges Committee, nor the Commons, could compel the resignation of the prime minister. The Ministerial Code, the rules which cover all ministers, is explicit that knowingly misleading parliament is a resignation matter – with its words repeating verbatim the terms of a Commons motion from 1997 asserting this rule. However, it remains up to the prime minister to enforce the code. If he were to be found in contempt but decline to resign, MPs who wished to bring about the end of his premiership would need to do so through a vote of no confidence within the Conservative Party or in the Commons.   

What are some of the questions that the Committee might need to consider? 

The motion passed by the House on 21 April refers for investigation “assertions the Rt Hon Member for Uxbridge and South Ruislip [the prime minister] has made on the floor of the House about the legality of activities in 10 Downing Street and the Cabinet Office under Covid regulations”. The motion specifies (though is not limited to) remarks made by the prime minister in the Commons at various points on 1 December and 8 December 2021.  

How the Privileges Committee will decide if those remarks misled parliament is a matter for the Committee itself. It will need to decide how it wishes to proceed, and what evidence it wants to see.  Some of the questions that it may need to consider include: 

  • What constitutes ‘deliberately’ misleading parliament? 
  • What is the burden of evidence required to establish somebody’s intent and state of knowledge at the time the remarks were made?  
  • What steps it would have been reasonable for the prime minister to take to establish the facts before making statements to parliament, and whether he did so? 
  • Was the prime minister was misinformed by others prior to his statements to the House and, if so, would  this constitutes a reasonable excuse for any contempt that may have been committed (Amber Rudd considered that it did not, when offering her own resignation as home secretary)? 
  • When did the prime minister first became aware that his remarks may have misled the House and did he take the earliest opportunity to correct the record – as required by the ministerial code? 
  • How do the prime minister’s accounts of the events in No10 compare to the findings of the Metropolitan Police and Sue Gray? Are there any discrepancies with what he told the House he did and did not know at any point?  
  • Is there evidence from either the Met or Gray investigations that suggest that the prime minister must have known that events in Downing Street could have breached covid rules?  

 

Update date: 
Monday, April 25, 2022

Original source – The Institute for Government

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