15.06.2023

Misleading parliament should matter

Mike Macnair discusses Boris Johnson’s lies, his resignation, his honours list and his media manipulation

On June 8 the House of Commons Committee on Privileges ‘Maxwellised’ their report on the allegation that Boris Johnson intentionally misled the house over the lockdown parties, sending it to him for comment. Johnson took the opportunity (June 9) to get his side of the story in first by resigning his Uxbridge and South Ruislip seat. He accused the Privileges Committee of being a ‘kangaroo court’ and part of a campaign by ‘the blob’ to reverse Brexit, denounced Rishi Sunak for failing to back him against the committee, of reneging on a ‘peace deal’ and of blocking some of his nominations for peerages in his resignation honours list. The committee has delayed publication of the report.

So far this is just a story of the common-or-garden backstabbing intrigues at the top of the Tory Party - “talk of court news, … who loses and who wins, who’s in, who’s out”.¹ There are hints of Brexiteer demagogy there, which are reflected in the sympathetic treatment afforded to Johnson’s claims by the Express, Mail and Telegraph.² Two of Johnson’s rejected nominees for peerages announced their resignations: Nigel Adams, MP for Selby and Ainsty; and Nadine Dorries (who announced she would resign as MP for Mid Bedfordshire, but has not yet actually done so). But this does not actually amount (yet) to a serious Conservative split or “meltdown”.

It is hardly news, either, that Boris Johnson tells lies. In his chapter on student politics in his sister Rachel’s book The Oxford myth (1988) he argued for the importance of dishonesty in political life. In spring 1988 he was sacked as a journalist from The Times for making up a quotation, and as Europe correspondent of The Telegraph in 1989-94 he made up a series of anti-European Union stories about alleged regulation proposals. The Mirror in 2022 listed “Boris Johnson’s 50 worst lies, gaffes and scandals”.³

There are, nonetheless, more important constitutional issues involved. In the first place, the case helps us to see why ‘Maxwellisation’ is as such an unfair procedure (in the name of ‘fairness’) for the benefit of the rich and of fraudsters. This case is merely the latest example of undue process of this sort.

Secondly, the fact that a section of the press clearly does not regard the prime minister lying to parliament as being in any way more serious than lying to the general public tells us something significant about the evolution of the UK constitution: away from the parliamentary sovereignty of the 18th to early 20th centuries, towards parliament as merely an assembly of local ombudsmen for constituent complaints and a theatre in the three-to-five-year process of campaigning for the election of a sovereign government.

Thirdly, the immediate trigger of Adams’s and Dorries’s resignations is the rejection of their nominations for peerages in Johnson’s resignation honours list. The story is tortuous and contested.⁴ But what it points to is the absurdity of the right of the resigning prime minister to award honours in a world which has seen three Tory prime ministers in the last six years - and, behind that in turn, the absurdity of the House of Lords as an institution.

‘Maxwellisation’ is the most immediately obvious issue. The point, in essence, is that giving Johnson advance warning of the findings inherently allowed him to set the timetable and to achieve news management by this means. The practice was named for Robert Maxwell, and arose because he litigated a department of trade and industry investigation which made findings against him as a company director without giving him an opportunity to comment.⁵ The authors of the 2016 Review of Maxwellisation comment that Maxwell in fact lost his litigation. But what they fail to recognise is that the delays caused by the litigation seriously blunted the effect of the DTI inspectors’ report and thereby allowed Maxwell to continue his dodgy financial operations with the assets of public listed companies down to his death in 1991, leaving the Mirror Group pensions fund stripped of £460 million.

What lies behind ‘Maxwellisation’, then, is that the legal professions routinely sell and deny justice, creating a culture of impunity for those who can afford unlimited expenditure on their services - in particular by creating forms of ‘undue process’ and excessive procedural protections, which allow the client to endlessly delay proceedings and to exhaust the resources of the (civil) claimant or (criminal) complainant. Until the mid-19th century, this effect was partially limited by statutory controls on legal fees (partially because it was still legal to hire multiple barristers).

It was also partially limited by the availability of parliamentary inquiries by select committees, especially into forms of official misconduct. GW Keeton showed in 1960 that in the late 19th century, parliament partially abandoned its responsibility to limit the sale of justice in this area, by replacing select committee investigations with forms of public tribunal and inquiry.⁶ In the 1960s, as the Review of Maxwellisation shows, these inquiries became substantially ‘judicialised’ and ‘adversarialised’ and thus (this is my comment, not the Review’s) subject to the sale and denial of justice - leading to exorbitant costs and intolerable delays.⁷ It should merely be abolished, and the power to run inquiries de-judicialised and restored to parliament.

Democracy?

Johnson’s stubborn resistance to resigning over having misled the House of Commons should be contrasted with Amber Rudd, who resigned in 2018 after (she said inadvertently) misleading the home affairs select committee about deportation targets in connection with the Windrush scandal. It is the general impression one gets from the literature that for a minister to mislead parliament used to be a resigning matter - but has gradually become less so.⁸

It may well be that modern technology and the creation of paper-trails has the result that ministers are more likely to be exposed in misleading parliament than they were in earlier times. Nonetheless, it does seem to be the case that there is a drift towards this mattering less to political careers than it once did.

I suggest that the background to this is that parliament is to a considerable extent less of a decision-making body than it was before universal suffrage. Then parliament very approximately represented the possessing classes in proportion to their possessions: the very wealthy were expected to be given seats in the House of Lords; the substantially wealthy could expect to fund member of parliament clients; the small proprietors got a bit of a say in elections.

In this context, after 1689 and before 20th century developments, real decisions were made in parliament - not just in the form of legislation (which was much less likely to be merely rhetorical spin than recent government bills are), but also in decisions about foreign and defence policy, and so on, informed by parliamentary debates. The prime minister in this context was the person who could hold together a majority coalition in the House of Commons, although this coalition might be of members of a single party. Among other consequences, in this context misleading parliament really mattered. It might affect real decisions. Hence the constitutional convention that ministers who misled parliament should resign.

Universal suffrage has led to moving the decision processes away from the Commons. Instead, MPs do social work as sort-of ombudsmen for their constituents and campaign for re-election. The prime minister is nowadays usually selected by party members in the country, rather than by MPs, and does not have to hold together a coalition; ministers are appointed by prime ministerial patronage (as they were by royal patronage before 1688). Decisions are reached in the interactions between ministers, the media, lawyers and lobby firms. In this context, lying to the House of Commons is gradually becoming merely equivalent to lying to electors (which has never been a resigning matter …).

Communists want to see a fully decision-making elected body, whether this is parliament or some other ‘supreme workers’ council’. To be fully decision-making it will need effective sanctions against ministers who mislead it.

Johnson’s retirement honours list has been at the centre of the press debate after his resignation, because Johnson would prefer this to be the central issue. After all, what he misled parliament about was not any old policy matter. It was that he and his associates in Downing Street assumed that they were not bound by extremely onerous Covid lockdown laws, which they imposed on the general public. It can be added that the lockdown laws which they flouted had enormous economic costs, and implications for evictions which are yet to fully feed through. Focus on ‘partygate’ makes Johnson look bad.

However, the resignation honours list is also seriously problematic. Johnson has rewarded or attempted to reward a series of cronies.⁹ This is not a complete novelty: Liz Truss, who was only in office for 49 days, has been criticised for submitting a list; Theresa May was accused of cronyism over her own list, having herself accused David Cameron of cronyism over his¹⁰; and so on. The practice that the retiring prime minister has the right to submit an honours list is remarkably recent, going back only to ‘Liberal imperialist’ prime minister Lord Rosebery in 1895.¹¹

A lot of these honours are merely ‘gongs’, thank-yous for loyal support and service. Peerages, however, give people the right to participate in legislative and governmental decision-making, merely because, in this case, they are patronised by a resigning prime minister. It is not just short prime ministerial tenure which makes this look odd (and all the more when the PM is forced out by a coup in their own party). It is also the bloated character of the upper, unelected chamber, with “about 800 members who are eligible to take part in the work of the House of Lords”.¹²

The government has, in fact, just forced though new legislation which criminalises walking or driving slowly on the public highway (if it is a protest).¹³ The process was done by ministerial order to avoid scrutiny in the House of Lords. Sir Keir Starmer’s Labour MPs backed the measure in order to avoid being seen as soft on protestors. The point, in the present context, is that the House of Lords is useless as a ‘check or balance’ on a government which is backed by the ‘fourth estate’ - the press barons.

In 1649, “The Commons of England assembled in Parliament, finding by too long experience that the House of Lords is useless and dangerous to the People of England to be continued”, abolished the Lords. Because the House of Lords was, in its majority, ‘remainer’, Andrew Neil revived this idea in 2021.¹⁴

Boris Johnson’s resignation honours should provide us with yet another reason to fight for its abolition.

1. King Lear act 5 scene 3.↩︎

2. See the Daily Express, Daily Mail and The Daily Telegraph June 14.↩︎

3. www.mirror.co.uk/news/politics/boris-johnsons-50-lies-gaffes-26013022 (July 7 2022).↩︎

4. There are different versions in The Observer June 11, Daily Mail June 12 and The Times June 14.↩︎

5. Re Pergamon Press (1970) [1971] chapter 388 and Maxwell v Department of Trade and Industry [1974] QB 523; discussion in the 2016 ‘Review of Maxwellisation’ available at committees.parliament.uk/committee/158/treasury-committee/news/98681/the-use-of-maxwellisation-in-financial-inquiries.↩︎

6. Trial by tribunal London 1960.↩︎

7. Some examples of the problem in R Shrimsley, ‘The never-ending problem with public inquiries’ Financial Times June 7.↩︎

8. ‘Amber Rudd resigns hours after Guardian publishes deportation targets letter’ The Guardian April 30 2018. On the convention: eg, www.instituteforgovernment.org.uk/article/explainer/ministerial-accountability (September 16 2020).↩︎

9. Eg, see above, note 3; H White, www.instituteforgovernment.org.uk/comment/boris-johnsons-resignations-honours (June 9).↩︎

10. The Guardian March 25 2023, September 10 2019 and August 6 2016.↩︎

11. www.thegazette.co.uk/awards-and-accreditation/content/103419.↩︎

12. www.parliament.uk/business/lords/whos-in-the-house-of-lords.↩︎

13. bylinetimes.com/2023/06/14/government-pushes-through-deeply-concerning-clampdown-on-protest-rights-as-labour-lords-stand-back.↩︎

14. www.british-history.ac.uk/no-series/acts-ordinances-interregnum/p24; ‘£3million for a gong? Now we must scrap the “useless and dangerous” House of Lords’ Daily Mail November 12 2021.↩︎