14th January 2022
The Sue Gray investigation – the terms of reference are here – is a curious thing.
It is, ultimately, an internal investigation by one civil servant, who reports to ministers, of other civil servants and various advisors and third parties.
It is not a quasi-judicial process and it has no independent standing.
Yet: it has been accorded substantial political force, and it is being used by ministers and others as an excuse not to be properly accountable to parliament.
Even without looking at the the terms of reference, we can know the following: (a) Gray cannot make a determination as to whether there is criminal liability, as she is not a court; (b) Gray cannot make an independent assessment of the application of non-legal guidance to her colleagues as she is not independent; and (c) she 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 this is criticism: it just follows from the nature of the investigation.
When one looks at the terms of reference, there are further problems.
There is mention of making “reference to adherence to the guidance in place at the time” which means not a great deal.
The word “reference” can mean little more than the guidance will be read and perhaps mentioned, but it does not mean there will necessarily be an attempt to apply the guidance to the facts as to ascertain whether there has been any breaches.
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 substance on actual breaches, as they will be part of subsequent due process.
The only things to be published are the ‘findings’ and not the report itself.
An investigation could fulfil these terms of reference and end up not telling us a great deal at all other than reciting facts – and with no findings of any breaches of anything.
And although the facts can be telling, they often require people to tell you what they mean.
Think of the Mueller report.
So we could end up with something that ‘clears’ everyone – not because of any deliberate whitewashing, but because the investigation was not required to do anything else.
Perhaps Gray may apply the guidance to the facts so as to make some findings of breaches of the guidance, but the thing is that she does not need to do so to fulfil the terms of reference.
And this is how a lot of these investigations – and inquiries – are bound not to meet elevated public expectations.
Why they are bound to often disappoint.
Not because of any arbitrary decision by those investigating – or enquiring – to ‘whitewash’ – but because of the very structure of the inquiry and the specific terms of reference.
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’.
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Best comment these last few days (alas, not mine):
‘Begone and take Marie Antoinette with you’.
Brilliant
“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 substance on actual breaches, as they will be part of subsequent due process.”
I imagine the confidentiality aspect will set all sorts of conspiracy theories running, but, as we both know, it is standard practice.
I am pretty confident that on more than one occasion I told a complainant that their complaint about how they had been treated by an individual member of staff was being appropriately addressed with that individual, but any outcome personal to that staff member would not be shared with the complainant.
Mind you, one was usually able to offer remedies linked to the complaint, possibly even a (no acceptance of liability) compensation payment.
I imagine Sue Grey wishes she now had such a remedy handy.
The politicians and even the met insist she will clarify matters. However the terms of reference mean that in fact the ‘findings’ could well provide political cover which will be spun to apparently ‘clear’ Johnson and others. Given that by all accounts she is a woman of integrity, why would she allow herself to be used in this way?
The terms do include the clause that if evidence emerges of potential criminal behaviour it will be referred to the police. Clear evidence is already in the public domain, but the Met has said they are not investigating, though they might do so if Sue Gray brings evidence to their attention!
“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’.”
See many episodes of ‘Yes Minister’ which demonstrate precisely this.
In the meantime, it is striking how many people are refusing to reveal their participation – or not – in the events because the enquiry is ongoing. It’s almost as if they are waiting to see if they have got away with it!
She started of with only one confirmed gathering at the DoE on 10/12/20 together with two “alleged” gatherings at No 10 on 27/11/20 and 18/12/20 to investigate.
She was told that she “may” investigate if she finds credible allegations of other gatherings. She is also mandated to move “swiftly” !
Access to the Government Legal Office rather than her own choice of Counsel is worrying.
News of other gatherings appear to be coming out of the woodwork now with people apologizing for things we know little or nothing about.
Many Judges would go to great lengths to get this case moved off their desks.
I suspect Gray will either prepare a limited report or seek to excuse herself from what is becoming an ever larger can of worms.
In other words, it’s similar to Johnson’s ‘apology’, which was designed to look as if he was apologising for something but not in such a way that admitted he had done anything wrong.
Today we hear that he has apologised to the Queen, but apparently his spokesman was unable to say what he was apologising for.
Dishonesty and chicanery is woven into the fabric of everything that comes out of No. 10.
Irksome
In the light of those observations, how can it be lawful for the Metropolitan Police to rely on this report?
Well. What a surprise.
David, my short-term memory isn’t that good these days.
But, wasn’t the cabinet secretary, Simon Case, going to do this investigation initially, until he found he was embroiled in it? (Was he not, allegedly, at one of these parties he was to investigate?)
Are Sue Grey’s terms of reference the same as his were?
Presumably civil servants and spads can “no comment” without fear of disciplinary action on grounds they may leave themselves open to prosecution? Or are they compelled to cooperate (unlike a criminal investigation) ?
If someone has admitted a crime to you and you do not report it, is that assisting an offender or does it require more active support to the offender?
not sure if it is a bug or a feature of the ultimate flexibility of the UK unique constitutional arrangements
I wondered if she would consider civil service employees drinking “at work”. In many employments that would count as Gross Misconduct for which the employee can be dismissed. But dismissal would require a step by step approach, and her enquiry could be one of the first steps
I note the exclusion
Any matters relating to the conduct of Ministers should follow the process set out in the Ministerial Code in the normal way.
This suggests that such findings may simply be passed to the PM, and the intention is simply to ‘throw Civil Servants under the bus’.
Even if the terms were more watertight, Sue Gray would have a conflict of interest (investigating her boss and her ulimate boss) that would be unacceptable in any other area of public life.
The Prime Minister is trying every trick he can dredge up from his multi volume, heavily thumbed book of escapology to keep his lard-butt squatting on and defiling his office, and no doubt given even the fraction of a chance would try to squirm his way out of whatever Ms Gray reports. But events are moving too fast. The revelation about not one but two pre-funeral parties. And one for “Enemy of the People” James Slack. It would appear that the regulations were ignored, but surely it must be an outside force that has to investigate. The Met is not fit to mark its own homework. It sounds like the time has come for those miserable killjoys at the Derbyshire police. Seriously though, it can’t be the Met, who have to do their own investigation into themselves in what went wrong in their own reporting and control processes. As do the Civil Service.
Excellent incisive analysis thanks.
This really should be republished as an invited opinion in a national – the Guardian springs to mind because,
a) they would publish it whereas the editors right wing dailies will be instructed not to and will obey good little doggies that they are.
b) the Guardian has editions in the US and Australia and they may well also pick it up. The corruption and moves to dismantle all checks and balances on its power have increasingly been in the news in other western nations – witness the recent damning opinion in the NYT about how the Johnson government is showing its true colours.
Surely the key paragraph is:
“As with all internal investigations, if during the course of the work any evidence emerges of behaviour that is potentially a criminal offence, the matter will be referred to the police and the Cabinet Office’s work may be paused. Matters relating to adherence to the law are properly for the police to investigate and the Cabinet Office
will liaise with them as appropriate.”
What is already in the public domain indicates that there is evidence ofvillegsl activity; so once she confirms the veracity of a single one of those sources she Has no choice but to refer things to the police and pause her investigation?
My reading of this is that Sue Gray does what Simon Case, the Cabinet Secretary tells her.
He only knows what she tells him.
And, if there is any chance of her finding out anything, Sue Gray will stop looking.
And, even if she does find out something, Simon Case doesn’t have to tell us what it is.
I wonder whether Sue Gray has considered putting the human interest details of the parties in an appendix?
The list of the railway line and station closures contained in the Beeching Report was listed in such an appendix.
As a consequence, reporters, especially regional and local journalists went straight to the information that provided an angle to which their particular readers would relate, leaving the detail of the report, in comparison, mostly unexamined.
Journalists appreciate pre-packaged human interest material guaranteed to get people reading, tuning in and turning on to their media outlets.
A Gray Report party appendix would suit them nicely and more salacious details in the media might well promote party fatigue, a likely response from a public who whilst many of them were angered by the initial revelations may now be on the way to becoming inured of them.
According to the Daily Telegraph, Lynton Crosby is back in Number Ten.
When asked to investigate, did she have the option of declining? If so, she must have deemed the terms of reference to be acceptable, politically, procedurally and ethically.
Well, the government cover stuff up and protect each other all the time. I write as a witness of this happening on the Hillsborough IPCC inquiry.
What has unfolded in the recent times is a scandal. There is no other way to describe it.
https://twitter.com/MattCartoonist/status/1483492489239707655/photo/1