15th January 2022
This post brings together my posts and tweets relating to the Sue Gray investigation in to the Downing Street parties during lockdown, as well as some new thoughts, into a single general overview.
As a fan of Captain Hindsight, General Overview will be most welcome.
— Jane Bennett (@badgermaria) January 15, 2022
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There are a couple of preliminary points worth making.
First, investigations like this – and other such forms of ad hoc inquiry – can be signs of an unhealthy polity.
(I argued this in the Financial Times back in 2014 and on this blog last year.)
This is because many inquiries, and most demands for inquiries, are also implicit admissions of State failure.
The admission of failure is that the other permanent elements of the State – primarily the executive, the police, the permanent regulators, the ombudsman system, the legislature, and the judiciary – have all failed in their roles.
If these elements of the State had done their job properly at the time – or been allowed to do their job properly at the time – then there would be less need for ad hoc inquiries after the event.
Every demand that there ‘should be an inquiry’ is also an implicit acceptance that the elements of State with the legitimacy and the purpose to supervise and scrutinise have been deficient.
And as this blog has also averred, often those put at the head of such investigations and inquiries are not sufficiently experienced or well-suited to obtain evidence which those facing scrutiny are unwilling to provide.
(In particular, judges and barristers spend most of their careers looking at documentary evidence which has been helpfully ascertained and compiled by others, rather than ever digging out the raw evidence for themselves.)
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The second preliminary point is that ad hoc inquiries usually suit politicians and others with public power – especially if those inquiries do not have powers to compel evidence which would otherwise not need to be given.
Here it helps to think of the techie phrase Garbage In, Garbage Out (GIGO).
Most inquiries and investigations are only as good as the evidence – documents and testimony and so on – available to them.
If you control the flow of evidence in to the process, you often have significant influence of the ‘findings’ and ‘conclusions’ that come out of the other end.
Garbage In, Garbage Out.
The eye-opener for me on this was when I was a central government lawyer about fifteen-or-so years ago.
I met other central government lawyers who explained how on inquiry work they would work backwards from what they wanted to achieve to the terms of reference of the inquiry so as to ensure they put in the evidence that would tend to the desired outcome.
And the government and others with public power (for example the police) have access to many good specialised lawyers who know how to game the inquiry system like this.
This is not necessarily wrong – it is the job of a lawyer to understand the rules of procedure and of evidence in respect of any process on which they advise.
But it is certainly contrary to the naive view that an inquiry will somehow magically find all the information that will enable it to come to some desired scathing conclusion.
And when the inquiry does not reach a scathing conclusion, the reaction is often that those doing the inquiry have deliberately sought to do a ‘white wash’.
Whilst in reality, the apparent ‘white wash’ is because of what happens with the supply of evidence in the first place.
If you control input the evidence, you will tend to control the output.
Garbage In, Garbage Out.
And that is why any worthwhile inquiry or investigation always needs to be independent of those facing scrutiny and why there needs to be powers to obtain information that those facing scrutiny will not want to provide.
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Now we come to the Sue Gray investigation, the terms of reference of which are published here (I am assuming they have not been amended) – and these terms of reference should be read by everyone following this investigation.
You will see that the investigation was to be conducted by the Cabinet Secretary.
It is not unusual for the Cabinet Secretary (who is the head of the domestic civil service and reports directly to the Prime Minister) to be asked by a Prime Minister to conduct investigations into central government matters.
Within the domestic civil service the Cabinet Secretary has unique authority, although – ultimately – he or she will not be independent of the Prime Minister.
But the Cabinet Secretary is not now conducting this investigation.
This is because the Cabinet Secretary attended a gathering which is part of the investigation.
And so an investigation which sort-of-makes-sense when conducted by the head of the domestic civil service who reports directly to the Prime Minister has been passed to another civil servant who does not (at least not as part of their day job).
Sue Gray has a reputation for being independently minded.
(And note: you should be careful of hoping that this reputation means she will be necessarily critical of ministers – for a genuinely independently minded person will also be independent from the loud clamour of ministerial critics.)
But that a civil servant has a personal reputation for being independently minded does not and cannot make them structurally independent.
She is a senior civil servant – but she is not the most senior, not even within her own department of the Cabinet Office.
And so we have a problem – a type of investigation that was envisaged for the very head of the civil service now being done by a more junior colleague.
And she is investigating her own colleagues some of whom may be at the same level as her and some – like Simon Case – more senior.
The investigation is also into special advisers and others who will be close associates of her ministerial bosses.
There has long been a problem with the non-transparent and closed nature of Cabinet Secretary investigations – but at least they sort-of-made-sense, but this arrangement must be even more unsatisfactory.
But, as this blog recently contended, the politically charged nature now accorded to this investigation would make inappropriate for any particular civil servant, let alone one who is not the Cabinet Secretary.
It is an investigation that ministers are hiding behind to avoid ministerial accountability to the House of Commons, and her report may topple (or ‘clear’) a sitting Prime Minister.
For all her merits, Sue Gray is not – and should not – be a crucial element of the constitution.
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Now we come to the structural problems of the investigation.
And here, even before we come to this investigation’s Terms of Reference, there are a number of issues:-
Gray cannot make a determination as to whether there is criminal liability, as she is not a court.
Gray cannot make an independent assessment of the application of non-legal guidance to her colleagues as she is not independent – and some of those being investigated are more senior in the civil service than she is.
Gray cannot compel testimony and documents – or even full disclosure – from any of those involved.
And Gray cannot determine whether the prime minister or another minister is in breach of the ministerial code, as she is not the prime minister.
None of these are her fault, and none of these are criticisms of any decisions she has made or not made.
These structural issues instead arise simply from the nature of the investigation she has been charged with.
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And now we come to the Terms of Reference.
If you read these carefully then you will see that there is even less scope for there to be any severe criticism published.
Any finding of apparent misconduct by any particular, named civil servant should not feature – for that will be a Human Resources issue (and that is only right, as there needs to be due process).
Here the reference to “the investigations will establish whether individual disciplinary action is warranted” has to be read with “any specific HR action against individuals will remain confidential” – and so there may be nothing published of particularised substance on any actual breaches, as they will be part of subsequent internal proceedings.
There is mention of making “reference to adherence to the guidance in place at the time” – but this may not mean a great deal.
The word “reference” here can mean little more than the guidance will be read and perhaps mentioned.
There is no express requirement under the Terms of Reference for Gray to apply the guidance to the facts so as to ascertain whether there has been any breaches.
Gray may do so – and if she is independently minded, she may indeed do so – but there is no requirement for her to do so.
All she is required to do so is to “establish swiftly a general understanding of the nature of the gatherings, including attendance, the setting and the purpose”.
Note the “general”.
She can also refer this matter to the police – but the threshold for what would trigger such a referral is vague.
And without being able to compel evidence, there may not be information provided to her for her to consider making any such referral.
(It is a remarkable feature of all this is how the Metropolitan Police – who can compel evidence – have fettered their own discretion and contracted out this investigation of a civil servant investigating other civil servants – who cannot compel evidence.)
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There are already problems in practice.
Parts of the investigation seem to have been leaked to the press.
“Johnson’s allies are increasingly confident that he can survive the report, which is due to be published at the end of next week” – the impeccably connected @Steven_Swinford reports pic.twitter.com/iQi9qBVcve
— Pippa Crerar (@PippaCrerar) January 13, 2022
And if it is leaking to the press, then presumably it would also be leaking within the civil service.
These apparent leaks are probably not from Gray and her team but from those affected who are being presented with provisional views or updates for their responses (this would be being done for fairness – even though this is not a judicial or even quasi-judicial process – for there is a general rule that those facing criticism in a report should be able to make representations).
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There are also indications that Gray has not been given full information – which is not surprising given the lack of power to compel evidence and the potentially serious consequences for facing scrutiny.
The Times’ @Steven_Swinford reports that Sue Gray has been “blindsided” by revelations of No 10 drinks on eve of Prince Philip’s funeral. She’s concerned staff are concealing information…
— Pippa Crerar (@PippaCrerar) January 14, 2022
And it may be that the report keeps on delayed while new parties are uncovered.
Like a paradox of Zeno, Sue Gray’s report can never be completed, for it will always have another newly revealed party to investigate.
— davidallengreen (@davidallengreen) January 13, 2022
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Recent political history – in both the United Kingdom and the United States – has seen many people looking forward to reports that then turn out (at least at first glance) not to have been as critical as many have hoped, from the Hutton report to the Mueller report.
But what is not surprising is that so many of these reports fail to be robustly critical – what is surprising is that any of these reports ever are robustly critical.
And this is not (always) because of the personal failures of those running the inquiries – but because of the structural problems of the inquiries and the ability of those (especially with competent legal advice) to regulate the flow of information.
Garbage In, Garbage Out.
Perhaps the independently minded Sue Gray will be an exception to this general view.
Perhaps notwithstanding the limits of the Terms of Reference and her inability to compel evidence, the report will match the elevated political expectations now placed on it.
Perhaps it will provide an ironic justification for the politicians who have hidden behind the investigation so as to evade accountability to Parliament – because it will genuinely be a report so substantial and far-reaching that it actually should not have been prejudged.
Perhaps.
Or it may be a report that will allow politicians to brief friendly media that they have been ‘cleared’ – without many realising the inherent limits on the investigation to find anyone in breach of anything.
(It is almost as if this investigation was structured in such a way so as to give scope to ministers to leak to the press that they have been ‘cleared’.)
Most likely is that the investigation will, well, simply comply with the Terms of Reference that have been public all along and so will provide merely “a general understanding”.
This will be a recital of facts “of the nature of the gatherings, including attendance, the setting and the purpose” – with “reference” (but maybe not more) to the relevant guidance.
But with no findings of breaches of the law, no names named, no individual culpability found.
This is an investigation that is almost
Just the (general) facts.
If so, the strange thing would be that anyone expected otherwise.
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Hello – a version of this blog post was accidentally emailed to subscribers without a title before the intended subscribers’ email, and I am sorry to those of you this irked.
Who thinks Sue Gray can actually be trusted to report objectively on all the parties held in 10 Downing Street in flagrant breach of Covid-19 lockdown laws and formal guidance? Let me give you 3 reasons to be deeply sceptical that Sue Gray is the ideal investigator:
(1) She was the person who “protected No 10 from scrutiny” after the Grenfell fire tragedy – see https://bit.ly/33pGRlL. If Sue Gray can’t be open, honest and transparent about something that Theresa May didn’t cause, how can she be open, honest and transparent about the issues that PM Johnson did cause?
(2) She is apparently central to the approval of peerages. For instance, even the website, Conservative Home, says, “If you are thinking of recommending one of your friends for a life peerage, and want to know if this character is likely to survive scrutiny, the best thing is to ring Gray and run the name past her.” So, let’s reflect on the number of Conservative Party donors (and Party Treasurers in particular – see Peter Cruddas at https://www.theguardian.com/politics/2021/jun/12/boris-johnson-faces-legal-action-over-peerage-for-billionaire-tory-donor-peter-cruddas), plus other dodgy Lords, such as as Lord Botham and Lord Fox (a former member of the Revolutionary Communist Party and UKIP MEP).
(3) Her future employment as a civil servant depends on the support of her boss, Simon Case, whom we know attended one of more of the rule-breaking Downing Street parties, and also the Principal Private Secretary to the Prime Minister of the United Kingdom, Martin Reynolds CMG, who was appointed by Prime Minister Boris Johnson to this role after being our ambassador to Libya in October 2019. Martin Reynolds was the person who actually sent out the invitation for the party on 20 May 20 during lockdown.
Personally, I would much prefer the Met Police to investigate all these parties in Downing Street and issue fines accordingly. The law must apply to everyone, including Johnson and his officials in Downing Street.
The Police yes but not the Met who have shown themselves to be equivocal at best in their dealings with Downing Street. Perhaps, as in Countryman, a regional force should investigate and be able to interview Met officers and Plods on duty. The Scottish or Northern Irish?
So basically what’s needed is a detective rather than a lawyer. Ironic then that the Met have said they will consider investigation only following the conclusion of this internal inquiry.
Better still, someone like an investigating magistrate/juge d’instruction, someone with power and teeth who can get to the bottom of things.
For me, the tricky element is that people seem to be seeing it as both an HR investigation and a criminal one – when in fact it is neither.
I’m less worried about people not being totally honest – the investigation team, I’d hope, would be able to access all sorts of information (it’s probably a bit late for CCTV, but not for emails and maybe not for passes) that will give a fuller picture.
Downing Street at the moment must be one giant Prisoner’s Dilemma – with people realising that one person spilling the beans (not necessarily intentionally) might bring them all down.
The best result may be a report that highlights that there were breaches but leaves allocating blame and consequences to HR and the Police.
As Johnson is now rumoured to be throwing all and sundry under the bus, those at risk may not feel the need to toe the party line. (Apologies for the pun.)
No doubt Johnson will waffle along in Parliament declaring that he has been cleared, but will the Public buy it? Too many of us have obeyed the Covid restrictions at great personal cost, not just because it was the law, but because we believed it was the sensible thing to do. Are we going to forget in a hurry, however much Johnson, Truss, Patel et al. want us to “move on”? I hope not.
I hope that it will be like the Paterson affair was – the Cabinet’s tawdry attempt to get him off the hook delivered the most spectacular own goal at the ballot box. It’s a pity that there aren’t a few more by-elections scheduled.
I can’t think there’s anything the inquiry could reveal that would improve Johnson’s standing. And I would guess that’s what Tory MPs will discover while back in their constituencies this weekend.
And it looks like that’s what has happened:
“What has convinced many Tory MPs to act against Johnson if he or the Downing Street operation is criticised directly or indirectly by Gray – and he then tries to fight on – has been the furious reaction from their constituents to new revelations of partying, including two events late into the night at No 10, on the eve of Prince Philip’s funeral last April when such gatherings were forbidden.”
https://www.theguardian.com/politics/2022/jan/15/tories-will-oust-boris-johnson-if-he-tries-to-dodge-partygate-blame
I enjoyed that.
If Sue Gray concludes that there were parties, they were held when restrictions were in place and she has seen enough evidence to conclude that the events deserve to be investigated, is she stepping so far outside the bounds of her commission to be sacked?
Could that stand in the ‘court of public opinion’?.
Would she go for unfair dismissal?
She could dine out on this affair even if deprived of her pension.
She’s 65. Retirement age for her cohort is 66. Any threat to deny her a Dame will be reversed. She can do it.
The ToR is so vague Sue Gray could choose to complete the task without infringement & blow a Hunga Tonga Hunga Ha’apai sized hole in the complacent No10 / Cabinet Office organisation; leave the Civil Service with pension intact and importantly, with her head held high.
Whether or not the Conservative party would sanction a retirement gong would be in doubt; however I suspect the public clamour for her award for services to the country would probably be overwhelming.
As I see it Simon Case, once he was embarrassed into withdrawing himself from the inquiry should have insisted on it being passed over to the police thereby putting himself and the Civil Service outside of its conduct.
In all the excitement about Prime Ministerial resignations and Tory leadership moves, I have not seen anyone observe that if Boris Johnson resigned then a shopsoiled Case would have the key role in keeping the Government running and managing the transition to a new Prime Minister.
Things could get very messy, very quickly if Johnson sulks out without even giving the Queen the name of someone to summon to the Palace to become the next Prime Minister.
The content of the Gray Report may prove to be small beer in the context of a Cabinet Secretary who has shown poor judgement in agreeing to it at all.
Brace, brace, brace?
I doubt if even Johnson would sulk/skulk off without telling the Queen; somebody has to be PM, kiss hands, get the seals of office. Until the 60s, a resigning PM would advise the Queen who to send for, and she would take this advice. One of the last actions of monarchial power. (I think the 14th Earl of Home was the last PM appointed in this way.)
Since then, the PM has been the leader of that particular political party. A resigning PM could advise the monarch of his/her decision to resign, but would have to wait for the result of the election of the new leader of his/her party; this process can take weeks. Until this decision is made, the PM would remain as a caretaker. Only when the decision is made, can he go and ‘advise’ the monarch to send for as his/her successor.
We are talking about Boris Johnson.
He defies convention and normal standards of behaviour.
There’s always Larry the cat. He’ll be more competent than Johnson.
I wonder if Simon Case has asked the Prime Minister to accept a minute wherein he states that he advised the Prime Minister to hand this matter over to the police and that the Prime Minister declined to accept his advice.
If I remember it right, Tony Benn, on two separate occasions, as a Secretary of State was handed such a minute by his Permanent Secretary, because Benn was embarking on a controversial course of action which ran counter to the advice of officials.
The presentation of such a minute to a Minister is not undertaken lightly.
It may be flourished when officials are drawn into any future inquiries about the merit of a decision with which they fundamentally disagreed and which they clearly advised a Minister against taking at the time of his doing so.
It seems strange at this juncture as to whether the Sue Gray investigation still remains warranted, and it should not simply be abandoned. That is other than for the benefit of the politicians who are looking for a “get out of jail” free card, when the report ends up as being ambivalent and less than specific as per the required terms of reference. The terms do not allow, as far as can been seen, to investigate the other revealed “parties” which seemingly grow by the day, if not by the hour.
Number 10 has now issued an apology to the Palace for one of the recently revealed parties (that fell outside the terms of reference), which is nothing less than a factual admission that that particular party DID take place (among the many others). This is while the claim of ANY party having taken place was originally strenuously denied by the Executive. The drip, drip should simple see a resignation, but this seem unlikely given the individual involved.
Well, if all we can gloomily expect is a general coat of whitewash, can we hope for a modest little annex 5, say, that lists all the events and their characteristics and attendees, and sets each against the relevant rules and guidance in place on each date? Without any comment or judgement. Maybe judgement has to be made of whether a gathering was a “work event”, “party”, or “other” or “unclear” – this can be done via asterisks or some other coding.
Personally I’d also like an annex 11 that reflected discursively on the meaning of Johnson’s phrase, “I believed implicitly [it was a work event]” read out the other day. Carefully drafted – he didn’t just believe, or think, or assume; something more mysterious was going on, apparently.
Well, if all we can gloomily expect is a general coat of whitewash, can we hope for a modest little annex 5, say, that lists all the events and their characteristics and attendees, and sets each against the relevant rules and guidance in place on each date? Without any comment or judgement. Maybe judgement has to be made of whether a gathering was a “work event”, “party”, or “other” or “unclear” – this can be done via asterisks or some other coding.
There are suggestions that Ms Gray has discovered that people are not being honest. If so, I hope she says so very publicly and clearly.
Personally I’d also like an annex 11 that reflected discursively on the meaning of Johnson’s phrase, “I believed implicitly [it was a work event]” read out the other day. Carefully drafted – he didn’t just believe, or think, or assume; something more mysterious was going on, apparently.
“we hope for a modest little annex 5”
Unlikely since as DAG noted the report does not have to be published and usual practice is that such internal civil service investigations are not.
It’s a measure of how seriously, or otherwise, the No. 10 machine (and its bosses) are taking this inquiry, that they are selectively defending each revelation to try and characterise it in a way that deflects blame from the PM, then scurrying back through the sally-port to hide behind the Sue Gray walls of ‘no comment’. This in itself is undermining the process.
I hope that she’ll play it straight, which is how to throw it back into MPs’ laps – just describe the events – the setting, timing, nature (i.e. whether it was a party or work), no. of attendees, and what happened, and then maybe express how it would have appeared to an attendee. She may be able to describe the culture more generally, or what witnesses have said about it. She ought to describe very carefully the limits of her investigation – it can neither ‘clear’ nor ‘convict’ anyone, it is a pure narrative, she has given names to her employers, how to react to the facts she describes is a political or HR choice for others so that any ‘closure’ is for others to decide upon. Also, she might describe the degree of co-operation she believes she has received, whether she is confident that she has been told the full story – if she has been blindsided by revelations she should say so and whether she thinks there may be other things she could have been told.
Excellent exegesis DAG. Should be required reading for all politicians and media. But it won’t. It has already been accepted as if it had credibility. It does not have an ounce, not a featherweight of independent objectivity. It was designed specifically not to. The shamefulness of politicians hiding behind this “report” narrowly commissioned by Downing Street, but with no power nor teeth, and then reporting the the PM to mark his own homework, is beyond ludicrous and is an abject exercise in political sophistry and cynicism. Johnson, like every bully, is in fact a coward and is now in hiding, on the pretext of a close relative with Covid. But then a week in a fridge is a long time. Again and again and again we are supposed to be gulled by this, but even the dogs in the street are not fooled. Nor is there any undertaking for Gray’s report to be made public so of course it won’t. One can but hope that events will overtake this pantomimic farce. Surely only the seriously slow can give this futile exercise any credibility for a nanosecond? The cravenness of the Met undermines any credibility it has left. Stationed at every entrance to one of the most heavily guarded buildings in the world and Mr Plod neither saw nor heard nuffin gov? Literally unbelievable.
Looking back over the last few posts I can see (again) how the careful use of words and the careful interpretation of words has come to be important to lawyers and administrators. This led me to some earlier thoughts on the origins of lying.
The early Christian church made much of the idea that telling lies would endanger one’s immortal soul such that no one would dare lie. But of course in politics and in business and in life a lie is a very useful thing, too useful to be easily abandoned. Further, it might be very convenient if I can lie but you can’t. Other religions and philosophies are available.
Some careful speaking and careful interpretation of words and beliefs gets one off the hook – for now. The rest is history.
You are correct to state inquiries are indications of the executive, police, permanent regulators, the ombudsman system, the legislature and the judiciary failing in their roles.
Examples:
Reports from the Parliamentary and Health Service Ombudsman (PHSO) can only be challenged by judicial review.
Rank and file police officers can be prosecuted for misconduct in public office, yet when an allegation of such conduct is made about PHSO investigators, the police say they have no power to investigate, making such investigators above a law which is supposed to apply to everyone in public office. (I still have the Met Police letter from 2016 explaining their rationale)
Bodies such as the police, ombudsman and the information commissioner have complete and unaccountable autonomy in deciding what they do and do not investigate.
The Health Service Safety Investigations Bill, currently going through parliament, will allow the Health Service Safety Investigation Branch (HSSIB) to share that autonomy and, in addition, will not allow any evidence obtained by them to be used in any criminal or civil proceedings or at am employment tribunal.
Demonstrations are taking place in protest at certain provisions of the Police, Crime, Sentencing and Courts Bill, due to be debated in the Lords on Monday.
One is drawn to the inevitable conclusion that there is an increased desire to pass legislation designed to protect the state and not the people.
Let us hope that the overwhelming weight of public disgust at the current shenanigans cuts through and leads to the removal of this particular Eton mess!
There is also the “realpolitik” point that turkeys are unlikely to vote for Christmas. If Sue Gray were to come up with a conclusion that meant the end for Johnson, the likely result would be long and nasty campaign against the civil service by that part of the Tory Party that backs Johnson, that would make those waged against Ted Heath, the BBC and the EU look genteel.