The law was broken – yet Boris Johnson is likely to survive. How and why?

We do not yet know if Boris Johnson will receive a penalty notice for breaking lockdown law. The Metropolitan Police announced this morning: “We will today initially begin to refer 20 fixed penalty notices to be issued for breaches of Covid-19 regulations.” So the first notices can only be issued today at the earliest.

The prime minister’s office has undertaken to make a public announcement if he does receive a notice, so we will know soon enough how serious this is for him. But there is a big difference between Johnson being found to have broken the law – and not.

If he does receive a notice, that would be unprecedented. Tony Blair was interviewed by police, but as a witness rather than a suspected offender, in a case for which there was never enough evidence to warrant investigation. Winston Churchill’s tax debts were cleared in a personal deal with Richard Hopkins, the chairman of the Inland Revenue, that could never have been struck today. But no prime minister has ever been found to have broken the law.

There is an argument for saying the damage is already done. It is true that most people have already made up their minds. Many of them think that Johnson is guilty regardless of what the police say. Indeed, it is possible that large numbers of people will think that if Johnson escapes a penalty notice that will be evidence of an establishment conspiracy. But these are people who wouldn’t vote for Johnson anyway.

It would be easier for the prime minister if he isn’t served with a notice. Then he can say that he is terribly sorry that some of the people working for him got it into their heads that the rules didn’t apply to them, and of course he takes full responsibility for everything that happens in his government – but he didn’t break the law. It wouldn’t persuade a lot of people, but it takes away the actual “Boris Johnson, law breaker” line from Labour advertising in the next election campaign.

It leaves the hard fact that the law was broken – or, at least, that in the opinion of the police, it was broken. There are fine legal distinctions about fixed penalty notices. They do not constitute a criminal record, despite being issued by something called the Criminal Records Office; and they do not have to be disclosed, unless you are the prime minister or the cabinet secretary, or you are undergoing “developed vetting” for security clearance.

And if someone pays the penalty, that is not in law an admission of guilt, even if it might look like it. You can understand why anyone would rather just pay up than risk prosecution in court, which could be the prime minister’s explanation, if he does get a notice, for why he thought he wasn’t breaking the law but the police took the opposite view.

Whether or not Johnson is served with a penalty notice, however, has no bearing on whether he knowingly misled parliament – as some Labour politicians accuse him of having done – when he insisted in the Commons that the rules had been followed at all times. The key word in the ministerial code is that ministers shall not “knowingly” mislead parliament, and the prime minister will insist that he honestly thought that the rules had been followed. In hindsight, we can say that parliament was indeed misled, but that doesn’t mean it was lied to.

To keep up to speed with all the latest opinions and comment sign up to our free weekly Voices Dispatches newsletter by clicking here

It is bad enough that the law was broken in Johnson’s Downing Street, and what makes it worse is that these were laws that Johnson’s own government passed. It is the hypocrisy of asking other people to make sacrifices that people in government weren’t prepared to make themselves that is so damaging.

But even if Johnson himself receives a penalty notice, Conservative MPs are not going to try to get rid of him yet. Even Andrew Bridgen, the permanent rebel, says there is a war on. What is more significant, though, is that even before Putin invaded Ukraine, the Tories were recovering in the opinion polls. The moment of maximum danger for the prime minister was when Dame Cressida Dick, the Met police commissioner, decided to investigate, blocking the publication of Sue Gray’s civil service inquiry report. Once that had passed, Johnson was safe because Labour failed to stretch its lead in the polls.

If the polls suggested that the prime minister was going to lose the next election, Tory MPs would think differently. But at the moment, Labour is an average of just three points ahead, with two years until the likely date of the next election, while the leading alternative Tory prime minister, Rishi Sunak, suddenly seems less of a surefire winner.

I think the chances are now that Johnson will lead the Tories into the next election, especially if he escapes receiving a penalty notice. If he gets a notice, he will be in a significantly weaker position, and more vulnerable to crises and events, but it will still take a lot to persuade Tory MPs to oust him.