Government transparency and national legislatures

Democratically elected governments need to be transparent with their citizens and parliaments or national assemblies . The rules on transparency will differ according to national laws and traditions. In a parliamentary democracy such as the UK system, the Government is held to account by Parliament on behalf of the public. To ensure that such accountability is meaningful, Ministers must be as open as possible about their  policies and decision-making and must not mislead Parliament.

On 15 February 2021, FIDE Fundacion published an article entitled “Scott Inquiry into defence exports to Iraq”. The author argued that the judge’s (Lord Scott) findings in his report in 1996  that the UK Government had persistently misled the UK Parliament and the consequential  undermining of accountability were still relevant issues in 2021. The question whether, in 2021-22, the UK Parliament was misled by the UK Prime Minister is now important to his prospects of remaining in office.

Criminal and other investigations into the conduct of the UK Prime Minister

The background to this supplementary article is that London’s Metropolitan Police are investigating several allegations of misconduct resulting from parties at No 10 Downing Street during periods of lockdown imposed to protect the public during the Covid pandemic. If the allegations are true, they may amount to criminal breaches of the Covid lockdown rules as they existed in England from time to time.

On 1 December 2021, in response to a national newspaper’s allegations of breaches of lockdown rules in Downing Street , Mr Johnson said in Parliament: “ what I can tell the right hon and learned gentleman is that all [Covid] guidance was followed completely in No 10…”

Yet, five months later, Mr Johnson was  fined for his own breach of the Covid rules. It is thought that he is still under investigation for other such breaches. There has also been a police investigation into the conduct  of those who work in the Prime Minister’s Office. Fines have been imposed on the Prime Minister’s wife, on the Chancellor of the Exchequer and on Downing Street staff. As at 12 May 2022, over 100 fines have been issued by the police in respect of parties at 10 Downing Street. In addition to the police investigation, the Government commissioned a top civil servant, Sue Gray, to investigate its alleged misconduct. The Government has decided not to publish her report pending the outcome of the police investigations. But her published update on her  findings [1] is a damning indictment of lack of leadership in the Prime Minister’s office [2].

House of Commons investigation into whether the UK Prime Minister misled Parliament

On 21 April 2022, the House of Commons passed a motion which referred the conduct of the UK Prime Minister to the Privileges Committee of the House. The question  for determination is in summary whether  Mr Johnson knowingly misled Parliament about his own breach of the Government’s  Covid lockdown rules  ; and if so to make recommendations as to the sanctions that the House should impose.

How is the Committee likely to approach the questions raised for its consideration?  The UK has an unwritten constitution. It comprises a network of statutes; of convention; of precedent; of guidance promulgated from time to time. Against that background, Ministers are expected to comply with a code of conduct now called the Ministerial Code. In 1996 when the Scott Inquiry published its report, the code was called Questions of Procedure for Ministers (“QPM”).  As to misleading Parliament, QPM said: Ministers must give Parliament as full information as possible about their policies, decisions and actions and must not “deceive or mislead Parliament and the public”[3].  But the Government, in its submissions to the Inquiry, signalled that it would amend the code to require that the duty on Ministers should be not to “knowingly mislead“ Parliament. That happened in 1997 after the Inquiry reported. The addition of “knowingly” seemed sensible enough.  But QPM contained no sanction for a breach of the duty.

The Prime Minister has sole ministerial oversight of compliance with the Ministerial Code.  By 2019, when Mr Johnson reissued the code, it was significant that Mr Johnson himself accepted that there must be a serious penalty for misleading Parliament. The specified penalty for knowingly misleading Parliament is that the Minister should resign [4].

The key points to note are, first, that the Privileges Committee is a political committee, not a court. It will apply the terms of the Ministerial Code in a political context. There has been criticism of the code where, as here, the Prime Minister himself is the alleged miscreant.  Even so, secondly, the basic question is factual and is necessarily governed by the Ministerial Code. In his statements to the UK Parliament, did the Prime Minister knowingly mislead Parliament? That is a question the answer to which will turn on the evidence of what may properly be inferred about the Prime Minister’s knowledge of the Covid restrictions enacted by his own government.

In that regard, there are some basic preliminary points for the Committee to consider. When, for example, he made his assertion on 1 December 2021, Mr Johnson would   have been briefed by his civil servants before making his statement to Parliament that all Covid guidance had been followed. Did the civil servants get their advice wrong? Or was their advice ignored? Irrespective of advice to the Prime Minister, he had personally led public briefings throughout the pandemic, responding to questions about the Government’s policy on restrictions and on how they were meant to operate.

Interestingly, at the Scott Inquiry, ministers took export licensing decisions themselves and therefore had personal knowledge of the applicable guidelines on defence exports and of the intelligence assessments of the use to which the exports would be put once exported to Iraq. This is an instructive parallel.

The question of resignation will have a heavy bearing on the outcome. The majority of members of the Committee are Conservatives. Will they, if they think that the evidence justifies it, have the political courage to decide that their own leader has knowingly misled Parliament? Mr Johnson has not shown any sign that he will resign if he has knowingly misled Parliament. Nor did any ministers resign in the wake of the Scott Inquiry.

Sir Keir Starmer QC, the leader of the Opposition, is being investigated for a single breach of the Covid lockdown rules. He has publicly said that, if fined by Durham Police, he would resign.

Integrity lies at the heart of the democratic process. Starmer has shown his willingness to act with integrity. Will the UK Prime Minister do the same?

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[1] Investigation into alleged gatherings on Government premises during Covid restrictions – update: 31 January 2022

[2] See general finding iii

[3] See paragraph K8.1 of the Scott Report.

[4] Ministerial Code published by the Cabinet Office : paragraph 1.3c : “It is of paramount importance that Ministers give accurate and truthful information to Parliament , correcting any inadvertent  error at the earliest opportunity. Ministers who knowingly mislead Parliament will be expected to offer their resignation to the Prime Minister.”