Don’t Pannick, the Lawfare Boomerang

Lord Pannick’s opinion on behalf of Boris Johnson continues to make the news. There is a suggestion this is was a misuse of public funds by the Johnson Government. Interestingly too, the Commons Committee savaged by his opinion has raised a stern retort. I am not going to analyse the opinion in depth. It is short and it is here. David Allen Green has it right, I think, when he says:

…there cannot be many weaker legal opinions that have ever been published. …a mere six pages of its report refutes (and not just rebuts) the twenty-two page Opinion. The committee’s report is, well, absolutely devastating. The language is extraordinarily strong for such a report – 

The report benefits from the advice of the Clerks of the House and Office of Speaker’s Counsel, and from their legal adviser Rt Hon Sir Ernest Ryder (former President of Tribunals in the UK and Lord Justice of Appeal).

To give you but a taste, the Committee says of Lord Pannick’s criticisms:

“his opinion is founded on a systemic misunderstanding of the parliamentary process and misplaced analogies with the criminal law.”

My essay feedback is kinder. A particularly important point is that:

“Lord Pannick’s opinion argues that our interpretation of intent will have a “chilling effect on Ministerial comments in the House”. We consider this concern to be wholly misplaced and itself misleading. Our published FAQs state that “There are already well established ways for Ministers to correct the record, with the understanding that they do so at the earliest opportunity to avoid misleading the House in line with the rules that apply to all MPs”.

Saying Pannick’s opinion is misleading struck me when I read it as potentially quite a big deal. Are they saying the opinion is deliberately or recklessly misleading (which might be professional misconduct if so)? I do not think we can rule that out. Not least because, earlier in the short report, when considering the charge against Johnson of misleading the house, they say, “It is implicit in the word “mislead” in the motion that there may be an intent to mislead.”

Whether saying this part of the Opinion is misleading is a casual choice of words, made by a political (albeit fairly non-partisan) committee under attack or something deeper is not an inconsequential question. It is worth at this point pausing to remember that the Committee’s legal advisers are quite likely to have looked at a draft of the report and that may well include Sir Ernest Ryder. That is not, though, the same as saying Ryder supports an allegation that the opinion is misleading (my instinct is it is unlikely Ryder descended into that arena) or that the Committee is correct. We do not know (more on that score from here a few days ago).

Let us put that issue to one side. Pannick is an advocate of consummate skill, with a reputation he would not want to lose, and would not advise in a way he believed to be wrong.  If he did not advise in a way that was wrong the next question is, why would he advise in a way which is so poor and, let’s be frank, a way that is so partial? His opinion reads like a piece of advocacy not advice and still less advice designed to persuade Sir Ernest Ryder, legal adviser to the Committee. Advice to his client should have contained a balanced assessment of the risks the Opinion was wrong. This must be particularly true when advising the Cake Eater in Chief.

David Allen Green does not incline to blame Lord Pannick for the situation. He points out we do not know Pannick’s instructions and can only judge his work in the light of those. He’s not kidding around either: he’s requested them through an FOI. For my part, I struggle to see what instructions could have led to Pannick giving the opinion he has in the way he has. I’d appreciate sensible suggestions. It may be an absence of imagination on my part. But I digress…

David has an explanation. You can read about it on his blog. In essence it is that the opinion was written to be briefed to the Mail rather than to properly influence the Committee. The timings of the Opinion are suspicious and fit David’s explanation. As he puts it:

Instead the criticism should be for Johnson, who appears to have sought to bring media and public pressure to bear on the privileges committee by using public money to procure an opinion to be placed on the government’s website.

There was no obvious reason why this was a matter for the taxpayer, and there is no good reason why the Opinion was published on on 2 September 2022.

Lawfare in other words. Publicly parading, let’s call them half-baked rather than half-something else, opinions of leading lawyers for political purposes. It used to be banned because it was thought to undermine the reputation of the profession for integrity and independence. Maybe it’s time to think seriously about that again. The abuse of independent advice is not a simple or uncommon problem (think RICs or the Post Office even Lehmans), but it is a serious one.

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