The Fog of Lawfare

There’s been quite a brouhaha about David Pannick’s opinion with Jason Pobjoy for Boris Johnson. They argue that in considering whether Boris Johnson committed contempt as a result of misleading parliament, he should have the right to have a lawyer represent him and to cross-examine any witness. Also that the privileges committee is proposing a “fundamentally flawed approach” because it does not require proving intent to mislead when proving  contempt; that the allegation needs to be proved to a high degree of probability; and that it is adopting an unfair procedure, “in that it says it may well not tell Mr Johnson the identity of witnesses whose evidence may be relied on to establish a contempt of the House.” And “he should be told the detail of the case against him — charges and evidence — so he has a proper opportunity to respond.” (See Joshua Rozenberg’s blog on the opinion from which I have distilled this summary). Whilst Rozenberg summarises the Opinion as not “devastating” but, “simply a reminder that public bodies must act fairly, ” others have been less kind.

David Allen Green queries, perhaps tongue in cheek, whether it is a legal opinion at all but is really more concerned with whether the opinion is any good:

The Opinion is not strong. Indeed, it relies entirely on the “but for” device, which can be one of the deftest rhetorical tactics for any advocate. The colour of a thing would be black, but for it being white. The object would be cheese, but for it being chalk. And here:

“But for Parliamentary privilege, a court hearing a judicial review application brought by Mr Johnson would declare the Committee’s Report to be unlawful.”

It is in other words, advocacy not opinion but you need to be a perceptive reader to really understand that. Perhaps just as  well in David’s view, “to say “but for” this being a parliamentary matter it would have this judicial consequence is to disregard perhaps the most fundamental part of our constitutional arrangements.” And more substantially still, “The Opinion does not even deal with the alleged wrong of Johnson not promptly correcting the record when he realised Parliament had been misled than him misleading parliament in the first place.”

And, importantly in my view, David says, “There is no good reason why this “earliest opportunity” point is not fully addressed by the Opinion.” If, as we should assume Pannick is really trying to competently advising the Prime Mininster on contempt process than this omission is a serious one. “The Opinion mentions the relevant duty …but uses it only to somehow say that it indicates only deliberate lying can be contempt…. As it is, the Opinion offers no defence whatsoever to the “earliest opportunity” charge.” An interesting question is whether this is a blunder or a more convenient omission perhaps shaped by instructions or the desire to persuade the reader towards a particular view. I return to this point later. I note too that David Wolfson QC, the Conservative peer and former Minister, made a similar point about intent in the Times,

Other criticisms of the Opinion are made. It is an “odd” attempt to “judicialise parliament”, And it is treated as noteworthy, that, “this matter [has] not seemingly gone through the government legal system and treasury counsel?” Pannick, his junior, and a white-collar criminal firm, “have been instructed directly by the Prime Minister, presumably with public money.” It cost a whopping £129,700. A wild sum of money for legal advice which, if David is correct, fails to address a critical point and builds its substantive argument on the rhetorical sand of a ‘but for’ argument.

There are other critiques of Pannick’s opinions, notably this from Mark Elliot (essentially a direct and sophisticated take down of Pannick’s analysis from a constitutional law perspective). And, in a similar vein, this from Alex Horne. They are both experienced public lawyers, and Alex has particular knowledge of Parliament.  Jacob Gifford Head conducts a perceptive analysis of the failure to take into up to date jurisprudence on the burden of proof. A competent, or certainly a comprehensive, consideration of the issue would, require some attention is paid to Jacob’s points. They are not obscure ones but good ones. Hannah White, of the Institute of Government, says, “it seems to me the government is tactically invoking legal standards when it suits them to do so when strategically they have little wish to involve the courts in fundamentally political and parliamentary matters.” Lawfare is fine, but only when it suits them. Politically it may be smart; using law to discredit parliamentary opponents whist, it seems to me, also discrediting law and lawyers into the bargain. I’m picking up mixed views on whether the Government publishing advice to undermine a parliamentary committee might breach parliamentary privilege, but given the expenditure of public funds one can expect the advice to stay in the news I think.

Pannick is probably the, and certainly one of the, leading public law advocates. In addition to his considerable intellect, his reputation has a tendency to sway opinion as David Allen Green notes in a subsequent post. This is quite likely to have been a reason why he was chosen to provide an opinion. Another is his previously expressed views on similar matters raised by Lord Lester’s case. Those instructing him might think, we’ve got the Top Gun and we can surmise he is onside. Is he one of us, has more of a role in legal instruction giving than perhaps one would like.

One possibility is that Pannick (and Pobjoy) were asked a limited question; their instructions might have explicitly excluded advice on whether a failure to correct those statements amounted to contempt. Had it done so, sensible, competent, professional practice should indicate that the advice was on a limited question in my view and this Opinoin does not do that. After all, practitioners have a responsibility not to be party to the misleading of others. On reading the advice with the benefit of the analysis I’ve linked to above, one does have a strange sense that Pannick and Pobjoy keep referring to the need to correct misleading statements accidentally made without really dealing with the significance of it in the context of the Inquiry or for their client. This is just an impression, I may be imagining it.

Pannick may have been best advised to swerve giving this advice. David Allen Green suggests he had to take it under the Cab Rank Rule. I am not at all sure about that; he had professional embarassment reasons to turn it down. Pannick, we might surmise, wanted to advise on this matter. He’s already taken up the cudgels on the issue disciplinary processes in the House, with some emphasis, in the matter of Lord Lester. Of course the fact that he wants the case (if I am right) and Johnson wants Pannick does not disapply the Cab Rank Rule but I do think there is a sense that Pannick might lack the necessary independence to advise on the matter, given his history on the issue. One might even go so far as to argue that he has an interest as a member (albeit in the Lords not the Commons) which means he might have an actual or potential conflict of interest with his client. This might seem far-fetched given their interests on the substantive issues seem to be somewhat aligned, although it is not beyond argument that this alignment led subconciously to some of the limitations of the opinion. As an adjunct to the conflict argument, he might come into the possession of confidential information through his instructions which would be useful to his own interests as a member. I am not for a moment suggesting he’d use that information improperly or otherwise, but it would be indicative of the potential conflict. I don’t put a great deal of weight on the sense that there is a formal conflict but I do think there is sufficient in the point to question whether independence has been fully through in this case.

To take this further, I should consider rC8 and rC9 of the Bar’s code of Conduct. rC9 enjoins barristers to not not knowingly or recklessly mislead or attempt to mislead anyone . I don’t see Pannick as engaging in knowing or reckless attempts to mislead; it’s more professional gamesmanship than professional misconduct that we see here but I do think the Bar needs to think very carefully about how it is engaged in lawfare through the trumpeting of its opinions. Their obligations not to mislead do or should probably encompass the potential audiences for their advice when it is likely to be published, leaked or reported in ways which are deliberately misleading by others. The givers of such opinions know they can be used and abused for purposes beyond the advice givers control but they can also take steps to limit that. This is one reason why clear caveats and limitations on the advice should be given, of the kind I mention above and why it is important to give proper weight to arguments contrary to those that the advice giver prefers. It is probably why, for instance, James Eadie torpedoed, rather subtly, the attempt rubber stamp the lawfulness of  the Northern Irish Protocol Bill under international law. He accepted instructions to advise on the basis of assumptions he was asked to, which were designed to ensure he gave an answer helpful to the Government, but he nonetheless questioned in the advice itself those assumptions. His doubts were (predicatbly) leaked and this spiked attempts to mislead others with the view that ‘Eadie has said this is lawful’ when he had not.

I think we are in more interesting territory if one thinks about rC8. Barristers, “must not do anything which could reasonably be seen by the public to undermine your honesty, integrity (CD3) and independence (CD4).” [My empahsis] If the criticisms of Pannick’s advice by the commentators above, and my own thoughts on Pannick are fair ones, there is  I think a question as to whether his own views and role in Parliament reasonably undermine the necessary perceptions of independence to advise here. When advising, rather than advocating, in particular the obligation is to give an objective, clear, balanced view of the law so that the interest of justice are served. That does not restrain them coming to a view, but it does restrain overconfident advocacy being clothed as august opinion in ways which can mislead others. In other words, lawyers ought not contribute to intellectual fog through Lawfare, they should shine light as well as burnish argument. The criticisms of the Opinion suggest, for whatever reason, objectivity and balance were not achieved here and raises reasonable doubts about independence. It diminishes those who are touched by it.

[This post was amended to include the Wolfson and parliamentary privilege points, which were omitted in error. I’ve remembered too there’s some law on what to put in advice… which the above Opinion may not comply with]

2 thoughts on “The Fog of Lawfare

  1. Thank you for including my contributions in this post.

    It will be interesting to see what arguments are put forward in the next case of alleged unfairness by parliamentary committees – and, if Pannick is again instructed, whether he will nudge forward the arguments he has so far deployed in the Lester and Johnson cases.

    As the Paterson case showed, there is unhappiness among some parliamentarians about how they are investigated and dealt with by committees. And there is also a desire by some of those parliamentarians to use legalistic, natural justice arguments – even though parliament is distinct from the courts.

    This unhappiness may be explained by bias and the resentment of those MPs and peers at being held to account. Or there may be a fairness problem here to be addressed. If the latter, however, instructing barristers to give “but for” opinions from the outside strikes me as a counter-productive tactic. Parliament is jealous of its privileges. A case for fairness should be made on parliamentary terms, and not on administrative court caselaw.

    That said, one suspects this is not the last we will hear of legalistic arguments to challenge the work of parliamentary committees.

    1. An insightful comment David. I’m also wondering if Ryder might feel a need or desire to say anything. For the reasons your blogs state, he’s unlikely to be much impressed, but will he want to say anything publicly?

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