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How Boris Johnson’s partygate win reduces Keir Starmer’s beergate woes

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Note: Durham police have now (8 July) accepted Keir Starmer and Angela Rayner have no case to answer on “beergate” – as suggested below
It’s an enigma wrapped in a mystery: how could the London Metropolitan Police possibly have decided the UK Prime Minister Boris Johnson attended a party on 13 November 2020 that was illegal under Covid regulations yet do so wholly lawfully? The regulations, after all, are clear:

8.—(1) No person may participate in a gathering which—
(a) consists of two or more people, and
(b) takes place indoors (including indoors within a private dwelling).

(The Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020)

There were exceptions in Reg. 11 for gatherings “reasonably necessary” for “work purposes” – but no exemption for work parties nor for a prime minister who clearly “participated” in the gathering (he gave a speech, raised a glass, drank a little wine before heading off to his flat to partake of a doubtless rather classier wind-down bottle of something after a hard day’s work).

The police failure to act left many baffled, including the barrister Adam Wagner, who knows a thing or two about Covid regulations. But there have been sufficient clues to understand their thinking and, potentially, to suggest that the Labour leader Keir Starmer has an even better case to be let off the hook for his own apparent “beergate” infraction in Durham.

The police view is more bizarre than the notion of “Schrödinger’s prime minister“, as one commentator called Johnson: “Simultaneously illegally at a gathering and legally at a gathering”. In fact the police, in effect, go further, taking the view that the 25-minute presence of the PM magically transformed an illegal event into a legal one. Once he left, poof! the magic disappeared and it suddenly became a wild, unregulated bacchanal.

The explanation
This is how Boris Johnson himself described the position in a press conference after the release of the Gray report on the parties:

“It’s part of my job to say thank you to people who worked in government. That’s what I was doing. I believe it was a work event.”

His argument (probably put into his mind by clever lawyers) is that part of his job is to raise morale, bond with employees, so when he’s doing that, even at a party, he’s actually at a “work event”. Hence the Met’s jesuitical distinction between Johnson’s behaviour and the behaviour of his minions. Since there was a leaving do (something different from a mere “party”, Johnson has insisted), his leading role in it was work related. He was at a “work event” and toasting outgoing employees “is one of the essential duties of leadership” he told the House of Commons.

Does this make legal sense?
No. The legal reality is that the regulations don’t actually sanction “work events”. The exemption from a ban on two or more people mixing is for gatherings “reasonably necessary” for work. People backing Johnson have been using “work event” (for example Peter Bone MP on Newsnight 24 May) not simply as a shorthand for “reasonably necessary for work” but to replace that notion in people’s minds: the claim is that any party-like event linked with work can be exempted from the rules. It can’t.

A gathering to say goodbye to a colleague is not “reasonably necessary” to work and it could have been done in other ways (with people staying in their offices and logging on to Zoom). No part of any party was necessary. (And note that the word “reasonably” does not mean “moderately” necessary but necessary upon the application of a reasoned assessment of whether it was necessary.) Johnson joined and hence “participated” in an unlawful event.

But note also that the police are not operating on the basis of a simple assessment of criminality. The fixed penalty notices they issue aren’t findings of guilt as in a court of law. They are based on an assessment of whether there is sufficient evidence to bring the individual to a magistrates court. As the Metropolitan police’s acting commissioner Stephen House told the London assembly’s police and crime committee on 26 May, fixed-penalty notices are only issued if police “had the evidence that we thought would give us a realistic prospect of a conviction at court”.

Mostly it pays for anyone sent a fixed penalty notice just to accept it to avoid a criminal record and higher fine. But this means the police judgment is subject to being undermined by clever arguments that can tip the balance against a reasonable certainty of a magistrate’s guilty finding to a possible likelihood that a magistrate will dismiss the case.

How does this help Starmer?
If the police are so wrong about this, what is it about Starmer’s beergate case that suggests the Labour leader should be in the clear of Covid breaches? He was photographed with election workers eating a curry and clutching a San Miguel – surely a breach?

In fact Starmer’s position is much better than Johnson’s. For starters he joined a wholly legal event, not an unlawful leaving party. The exceptions to the rules on gatherings include those “for the provision of voluntary or charitable services”.

The work being done for elections in Durham was done by staff and volunteers working on the preeminently important “voluntary service” of taking part in the democratic process. Clearly Starmer’s attendance was, in Johnson’s words, “one of the essential duties of leadership” – building morale and bonding with election workers in the service of his party and of democracy itself. He gave a speech, he broke bread (specifically naan) with party members, they would have been buoyed up by his presence. It would be quite difficult for the police to second-guess the judgment of party organisers and declare his work in this capacity not “reasonably necessary” for the legal purpose of both work and voluntary service.

Aren’t there other arguments against Starmer?
People opposed to Starmer complain that the event was organised, somehow vitiating it’s claim to legality. Why? Starmer had a tight schedule of election work that day taking in Humberside as well. Of course his meals and meet-the-workers events were carefully scheduled.

What about the beer? Surely that’s damning, suggesting a party rather than work-related gathering? Not at all. Despite what amounted to a sex ban during lockdowns for most single people (and some married ones such as Matt Hancock), the police were regulating proximity, not morality. In the early days they thought they could stop people buying alcohol from supermarkets, open as a necessity, but they couldn’t. Stephen House made the point at his London assembly meeting: “Just because there is alcohol present, can I remind people that the Covid regulations are about breaching Covid regulations. They are not about whether there is drink there or not.”

The rules are about whether the gathering is reasonably necessary for work, not the choice of beverage, not least because it was wholly intended by the drafters of the rules that the exemption should allow the “reasonably necessary” lunching – and wining – of important business clients.

So Starmer is in the clear?
Pretty much. There is just one glitch. There is not much hardcore law in all this, no leading cases, no significant precedents, no appeal court judges’ examination of the regulations. There is just a (one hopes) commonsense interpretation by overworked local police officers of the words in the rules. It’s possible Durham police may take a less accommodating view of Starmer than the Met did of Johnson.

The former Met Detective Chief Inspector Simon Harding told Radio Four’s PM on 24 May “you’d hope there would be consistency” between police forces interpreting the same law of the land. But potentially there may not be.

On balance Starmer still has a better case than Johnson – but for political reasons he has rather stymied himself if Durham police do take against him. Having promised to resign if they send him a fixed penalty notice, he could hardly take the matter to the magistrates or appeal it from there to get a judge to clarify the law.

The whole business shows the danger in giving the police powers to make summary judgments on legal matters (on which, again, see Adam Wagner passim over the last couple of years) – a matter legislators should bear in mind when they are passing laws that allow police wide discretion over controlling the behaviour of citizens (as the Conservatives have done and intend to continue doing).
Twitter: alrich0660

Here is the Durham police statement on Starmer and Rayner

• Those interested in the moral turpitude of Boris Johnson might like this: Boris Johnson’s private life – a matter of public interest
• David Allen Green in The lawyering up of Johnson notes how the PM has benefited from exactly the sort of “activist lawyers” he normally castigates – discovering meanings in the law that cannot be found by the literal interpretation that his Government wants to require judges to perform

About alrich

Journalist and blogger on legal and financial/economics issues

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