Sir Ernest Ryder: The Privileges Committee is the servant of the House of Commons, and will conduct its inquiry with a commitment to fairness and transparency throughout

• Committee of Privileges

The Committee of Privileges is the servant of the House of Commons. Its sole duty is to safeguard the functioning of the House and hence the interest of the public as its electorate. At the end of an inquiry it reports its findings and recommendations. It is then for the House to decide whether to accept or reject its proposals.

Unusually for a committee of the House, it cannot act of its own volition but instead takes the terms of reference for its inquiries from Resolutions of the House.

The powers and procedures of the Committee are defined by Standing Orders and precedent; the Committee has set out how it will apply them in a way that safeguards fairness and natural justice. The question that is raised by some is whether the inquiry should proceed now that Boris Johnson is stepping down as Prime Minister. That is a question for the House as a whole.

The Committee cannot unilaterally set aside the unanimous resolution that began the present inquiry. Uninformed assertions to the contrary are simply wrong. Members of the House are free to request the Government to bring forward a motion to rescind the Resolution it passed on 21 April and to vote upon that motion as they see fit. That is the way that important constitutional issues such as questions of privilege are decided.

While the matter is the subject of an inquiry, a transparent procedure must be followed. The Committee has considered the precedents that exist and has published its procedures in advance of its deliberations so that the procedure might be known to everyone. It reported that to the House in July.

It is not the case, as has been asserted, that the Committee has ‘lowered the bar’ by not adopting the concepts either of the Ministerial Code (which is the responsibility of Government not Parliament), or of contempt of court.

Contempt of the House of Commons is not the same as contempt of court, most particularly, it is not the same as criminal contempt. Neither the criminal law nor the courts have a place in this aspect of the House’s functions and it is inappropriate to use analogies with criminal offences and their attendant language of verdicts, guilt and innocence or criminal punishment. There is, for example, no question of loss of liberty as a consequence of this inquiry.

Likewise, the Ministerial Code is based on a completely separate process which is quite different in its terminology and application.

What the Committee has done is to publish the procedures that follow the precedents of the House and its predecessor committees in relation to Contempt of the House. Precedent is of course fact based, that is the very nature of the concept. Interpretations over time in different factual contexts may be different but it is important not to be distracted by propositions that are not directly relevant to this parliamentary process.

It would be a departure from precedent for the Committee to adopt the stance suggested by Professor Bogdanor that it should ‘disprove [the] defence’ put forward by Mr Johnson. The Committee does not assume any fact until it is proved on evidence and the Committee will not engage in any speculation about any aspect of the inquiry. It would be wrong of the Committee to speculate about whether any justification of the kind suggested by Professor Bogdanor is contemplated by Mr Johnson. The essential components of whether the House has been misled, whether there has been a contempt and, if so, what if any sanction should be recommended have yet to be decided on evidence that is yet to be received. To paraphrase a well known aphorism: ‘nothing is decided until everything is decided’.

The examples which Professor Bogdanor cites in his recent Daily Telegraph article are not, of course, precedents relating to the privilege jurisdiction of the House. They are not relevant to the procedure that will be used in this inquiry. Openness with Parliament was a central issue in the Scott Report but the question was never referred to the Committee of Standards and Privileges by the House.

The Committee needs to be able to hear evidence which is relevant to its inquiry and some potential witnesses may not be prepared to give that evidence if their identity is made public. It is not new for select committees of the House to have to consider such a step. The Committee in its report to the House in July stated that in circumstances where it has decided that the identity of a witness needs to be withheld to enable them to give their evidence, it will “ensure that the Member under investigation is aware of the content of the evidence and is able to challenge it if he chooses to do so”. The Committee has been clear that it will take expert advice on this to ensure fairness and natural justice, while at the same time ensuring it can consider all relevant evidence in the inquiry.

The sanction – should there be a finding of contempt - should not be assumed. If, and I stress if, misleading the House is proved, the Committee has before it a wide range of options in making a recommendation to the House. The circumstances are many and various and have not yet been established. If there is a contempt then a recommended sanction will have regard to the degree of both personal knowledge and intention that is demonstrated.

It is evident that Members of the Committee are being subjected to a sustained campaign of adverse comment, much of which is seriously misconceived. Debate and discussion is an important part of the democratic process but it is wrong to subject Committee members to inappropriate pressure or intimidation. Indeed the rules of the House require that the work of the Committee is not interfered with.

At the end of its inquiry, the Committee will report its findings and recommendations. It is then for the House to decide what if anything to do.

This piece represents the advice upon which an article published in the Telegraph on the 24 August 2022 was based.

The Telegraph piece can be found here: https://www.telegraph.co.uk/news/2022/08/23/will-give-boris-fair-trial/

Rt Hon Sir Ernest Ryder is Legal Adviser to the Committee of Privileges. He is a former Senior President of Tribunals for the United Kingdom and Lord Justice of Appeal, and is currently Master of Pembroke College, Oxford.

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