This explainer sets out the role of the parliamentary Committee of Privileges and explains why it is conducting an inquiry into former Prime Minister Boris Johnson.
It also considers what the implications of the inquiry might be.
What is the Privileges Committee?
The Committee of Privileges is the House of Commons select committee appointed to conduct inquiries into issues related to parliamentary privilege. The committee investigates when there may have been a breach of privilege or a contempt of privilege.
Parliamentary privilege refers in part to the legal exemptions that MPs have in certain areas that ensure they can perform their roles effectively. For example, MPs are immune from defamation laws when speaking in Parliament so that they can speak freely. It also refers to the right of Parliament to regulate its own affairs.
A ‘contempt of privilege’ is any act (or failure to act) that ‘may prevent or hinder the work of either House of Parliament’.
In 2019, for example, the committee found that Dominic Cummings had committed a contempt by refusing to attend and give evidence to an inquiry being conducted by the Digital, Culture, Media and Sport Committee.
Erskine May – the guide to parliamentary procedure – states that the ‘Commons may treat the making of a deliberately misleading statement as a contempt’.
How does the Committee of Privileges differ from the Committee on Standards?
The Committee of Privileges should not be confused with the related Committee on Standards, despite the two having the same Chair and MP membership. The Standards Committee was split from the Privileges Committee in 2013 to allow for members of the public – referred to as ‘lay members’ – to sit on it. It therefore has more members than the Privileges Committee.
The Standards Committee is responsible for the MPs’ Code of Conduct and overseeing the work of the Parliamentary Standards Commissioner. The inclusion of members of the public on the committee means that no party has a majority.
The Privileges Committee, on the other hand, investigates matters related to parliamentary privilege when they are referred to it by the whole House, and its members are all MPs. The Privileges Committee has seven members: four Conservative, two Labour, and one SNP. It has a Conservative majority, reflecting the make-up of the House of Commons more broadly. However, the Commons’ rules state that the committee must have a chair from the official opposition.
Why is the Privileges Committee investigating whether Boris Johnson misled Parliament?
On 21 April 2022, the conduct of then Prime Minister Boris Johnson was referred to the Privileges Committee by the House of Commons for investigation.
The Resolution passed by the Commons referring the matter to the committee authorised it to investigate whether the Prime Minister’s statements in the Commons relating to ‘partygate’ misled the House and, if so, whether his conduct amounted to a contempt (in other words, if it inhibited the functioning of Parliament).
“The Prime Minister Rishi Sunak has confirmed that Conservative MPs will be given a ‘free vote’ on whether to accept the findings of the committee or not”
The Resolution identified several statements as potentially misleading considering the fixed penalty notices that were handed out by the police for gatherings in No.10 and the Cabinet Office that broke Covid-19 rules. These included Johnson’s answers at Prime Minister’s Questions in December 2021 that “all guidance was followed in No.10” and that “I have been repeatedly assured since these allegations emerged that there was no party and that no Covid rules were broken”.
The committee has made clear, however, that it is ‘not conducting an investigation into “partygate” or the culture and behaviour of No. 10 and officials who worked there over the relevant period’.
How will the Privileges Committee inquiry into Boris Johnson proceed?
The Privileges Committee began its inquiry in June 2022 at which time it issued a call for evidence and appointed Sir Ernest Ryder as its legal adviser.
This was after the Metropolitan Police and the senior civil servant Sue Gray had completed their own investigations into ‘partygate’ and it had selected a new Chair. Labour MP Harriet Harman was selected after Labour MP Chris Bryant recused himself as Chair for the course of the investigation.
Bryant issued a statement saying that it was ‘important 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’ after questions were raised about his suitability given previous statements he had made in the media about Johnson’s conduct.
The committee then set out how it intended to conduct the inquiry in July 2022, and published a ‘summary of issues to be raised with Mr Johnson’ in March 2023.
This interim report further set out the committee’s approach, saying that if it determines that Johnson misled the House of Commons, it will then also consider whether the misleading statement ‘was inadvertent, reckless or intentional’. If it concludes that a misleading statement was intentional or reckless, the committee will consider what sanction to recommend to the Commons.
“If a suspension of 10 sitting days, 14 calendar days, or more is agreed then it would engage the Recall of MPs Act 2015.”
While not representing the final conclusions of the inquiry, the interim report stated that ‘The evidence strongly suggests that breaches of guidance would have been obvious to Mr Johnson at the time he was at the gatherings.’
Johnson gave three hours of oral evidence to the committee on 22 March 2023 responding to the issues raised in the interim report. He has submitted written evidence in his defence which has been made public.
The committee has said it reserves the right to take further written and/or oral evidence if it deems this to be necessary.
On 23 May, it was reported that Johnson had been referred to the police by the Cabinet Office after lawyers representing him in the public Covid inquiry came across information in his official diary that could indicate further breaches of lockdown rules.
The Cabinet Office also passed this information on to the Privileges Committee, a spokesperson for which said: ‘The committee received additional written evidence from the Government on 18 May. On 19 May this was sent to Mr Johnson to enable him to respond. The committee will take this evidence and Mr Johnson’s response into account when considering its final report. The committee is making progress with its inquiry expeditiously.’
What happens if the Privileges Committee concludes that Johnson misled Parliament?
If the committee determines that Johnson did mislead Parliament and that his actions constituted a contempt (because they prevented or hindered the work of Parliament) it may recommend that he be suspended from the House of Commons for a period. The sanction the committee recommends is likely to reflect how serious it judges the contempt to have been (if it decides one has been committed). It would then be up to the Commons itself to decide whether to endorse the committee’s recommendation.
The Prime Minister Rishi Sunak has confirmed that Conservative MPs will be given a ‘free vote’ on whether to accept the findings of the committee or not, meaning they will not be told which way to vote on the matter.
If a suspension of 10 sitting days, 14 calendar days, or more is agreed then it would engage the Recall of MPs Act 2015. Under the Act, if a suspension of this length of time takes place then a recall petition must be opened. A by-election is then triggered if 10% or more registered voters in the MP’s constituency sign the petition. The incumbent MP may contest their seat in the by-election that follows, alongside any other candidates that may run.
On 30 March, the Committee on Standards recommended that Margaret Ferrier MP be suspended from the Common for 30 days for breaking pandemic rules. A suspension of this length would trigger a recall petition in her constituency. However, a parliamentary vote on the committee’s findings was delayed until after the Whitsun recess at the last minute.
When will the committee conclude its inquiry?
No fixed date has been set. The Guardian reported on 4 May that the inquiry could be concluded by the end of the month, with a draft report finalised ahead of the Commons going into recess on 25 May.
However, this was before the committee received new evidence from the Cabinet Office regarding possible further breaches of lockdown regulations.
Once the committee has agreed its draft report, Johnson will then have two weeks to respond before the report is made public and the government tables a motion on the findings. Parliament is in recess until 5 June 2023.
Have there been any criticisms of the Privileges Committee inquiry?
Some of Johnson’s allies have made statements questioning the independence of the inquiry and its temporary Chair, Harriet Harman.
Leader of the House of Commons Penny Mordaunt has said, however, that the committee ‘need to be permitted to get on with their work without fear or favour’.
Johnson’s office described the passing of new evidence to the committee by the Cabinet Office an attempt ‘to lengthen the Privileges Committee investigation as it was coming to a conclusion and to undermine Mr Johnson.’
By Alex Walker, Research and Communications Officer, UK in a Changing Europe.