12th January 2021
There are two conventional ways of looking at the constitution of the United Kingdom.
One is as a list of institutions: the crown, parliament, the courts, and so on.
Another is as a list of functions: the executive, the legislature, the judiciary (which corresponds generally, but not exactly) with list of institutions.
The general approach of this blog (and my commentary elsewhere) is slightly different: to see the constitution as the means by which certain basic conflicts about power are recognised and reconciled.
But whichever approach you have to understanding the constitution of the United Kingdom, one thing will always be the same.
An individual civil servant should not be a crucial element of the constitution – regardless of who that civil servant is.
A civil servant is (usually) a servant of the crown (taking the institutional approach), a part of the executive under ministerial direction (the functional approach), or has no special competence or legitimacy in resolving a contested political problem (the conflicts-based approach).
Sue Gray, the civil servant tasked with resolving the Downing Street party problem is, by informed accounts, an outstanding civil servant.
And if this was a mere exercise in fact-finding, this task may not be a problem.
But her investigation has become something more.
Sue Gray’s investigation has become a vehicle by which ministers – even at the despatch box – are evading their duty to answer urgent parliamentary questions.
Her investigation is the excuse given by our prime minister for not saying even whether he was present at a party (or parties).
But Sue Gray is not a judge determining a matter in the courts, or an appointed head of a statutory inquiry.
Her investigation is not – and should not – be a reason for the prime minister or other ministers to escape straightforward accountability.
Sue Gray should not be a crucial element of the constitution – deciding, in effect, the fate of a Prime Minister and while doing so preventing ministerial accountability to parliament and the public.
No civil servant – even the cabinet secretary, let alone a more junior figure like Sue Gray – should be placed in this position again.
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But there is long precedent for this approach. Usually, and in this case, the Cabinet Secretary is asked by the PM to conduct such an enquiry. Only when he was seen as conflicted did he have to stand down and Sue Gray was appointed in his stead. The problem surely is that the civil service and hence any civil servant, ultimately reports to the PM. PMs are not usually ‘in the dock’.
To conduct such an enquiry to close it down.
If you want to get at the facts then you call in the police.
A point made in Yes Minister and Yes Prime Minister.
One interpretation of our constitution would be that it is for the Monarch to investigate the Prime Minister. But for good reasons we don’t do that anymore.
Which leaves, realistically that Parliament is the only place that can and should hold the PM to account (in the absence of an election). Politically though the adversarial nature of our parliament means something like this nearly always descends into partisan issues.
Bringing in a senior civil servant to investigate their boss and the PM is far from ideal, but unless Parliament genuinely wants to set up a body to do this, there doesn’t seem to be any other choice.
You appear to have forgotten about the police, who ought to be investigating these alleged crimes, as well as very many counts of misconduct in public office.
As a former senior civil servant I totally agree with you. The one redeeming fact is that Sue Gray is over 60, which means, however one feels about age discrimination, that she is nearing the end of her career. The “without fear or favour” cliche should therefore apply to her, in a way it didn’t to the previous enquirer, Simon Case the Cabinet Secretary, who is much younger.
I understand that Sue Gray had a career break running a pub, so she undoubtedly knows what a party is.
Her career may be almost over, but there is clear scope for her to be ennobled or honoured of not. Whether that thought would influence her findings, I couldn’t begin to comment.
That could work both ways, of course.
Of course. The new prime minister may be very grateful for her assistance.
Since there is no trial, the Paymaster-General’s appeal to natural justice is misplaced; though ‘hear the other side’ does invite the response ‘we’re waiting’.
If Johnson had any integrity he will own up that he was there, or, if he wasn’t there, he will have to say he knew nothing about it.
Who will believe him?
If Sue Gray finds that he was there. She has done her job. If she can’t say that with absolute certainty, she has still done her job.
It will be for others, presumably the Tory party or ultimately the electorate, to judge what happens next whatever the outcome.
So there is a perfectly believable scenario that sees Johnson survive.
Pure Trump playbook.
I wouldn’t be surprised if the outcome is that Johnson didn’t go to this BYOB party. He’s too hard up and stingy to buy the booze. Now, if it had been a freebie…
Unless Lord Brownlow gave him the bottle he took along.
As has been noted elsewhere, if the BBC article from FT’s Christopher Cook is to be believed, Sue Grey is the Cabinet Office equivalent of Mr Wolf from Pulp Fiction.
(‘The most powerful person you’ve never heard of’, https://www.bbc.co.uk/news/uk-politics-33431580)
Her advice to Gove, Cummings et al on the use of private email (the ‘Mrs Blurt’ account) to avoid discovery and FOIA requests may have been costly in the end but perhaps gives some indication of what to expect.
According to Cook, Grey famously avoids leaving electronic and paper trails of her own advice, and if staff are being told to ‘clean up’ phones one can’t help but wonder where such advice is ultimately coming from.
It will be interesting to see what narrative is pieced together from the scraps of evidence that are allowed to escape the shredder – the creative genius of the Cummings account of Barnard Castle may yet be surpassed.
This “Inquiry” – what is its remit? How long will it take? Who will the investigator report to?
I genuinely don’t know the answers or even if some of these questions have been asked but I recall the last time there was any sort of inquiry into DePfeffel Johnsons behaviour, over his interior decorating bill, it seemed to take quite a while before he was initially exonerated, then a few months later doubt was cast over the “accuracy” of his answers which was then followed by further investigation which also exonerated him, again, by which time so much time had passed since the original episode you’d need a “previously on the Carrie and Bozo show” type re-cap to fully understand what it was all about.
So yes, this looks a lot like a ‘long grass- kicking the can into’ type situation and I wouldn’t be remotely surprised if he was exonerated again, depending on the remit of the investigation and how interested the Media are at that point in time.
And as to the question, was the PM at this or any other party, as has been pointed out multiple times, why don’t we simply ask the PM himself the straight question…….oh hang on, now I see the problem with that approach.
> One interpretation of our constitution would be that it is for the Monarch to investigate the Prime Minister.
Maybe a silly question: Couldn’t be a committee of the Privy Council a mostly non-partisan place of elder statesmen and senior civil servants to investigate and admonish failing standards in government and parliament? From the outside the Privy Council is a weird thing to watch, it’s either toothless (prorogation crisis) or the hidden establishment. If the host sometimes will find time to write about this institution I’d be delighted to read it.
Whole situation is beyond bizarre. Johnson today in PMQs admitted he was there. (Sort of) apologised for it – in as much as Johnson is capable of such a thing.
What is there for Sue Gray to find out, that is not already widely known?
Does Johnson really think he will get away with his behaviour, regardless of the outcome of this ‘inquiry’?
The key point is surely why – when this country faces so many pressing issues – did the PM direct a senior civil servant to waste her time and that of many others, in the process wasting taxpayers’ money, addressing ‘who did what’ in relation to events that should not have taken place, and over which any honest politician would have resigned months ago? Ms Gray and her staff’s time would be much better spent applying their considerable brain power to resolving real world problems.
It’s a complete farce – how can a civil servant be instructed by PM to undertake an investigation when he himself is part of the investigation!
It should be an all party investigation.
It looks as though the 1922 Committee will – following careful consultation of social media – actually slit the pigs throat in this case. We appear to be governed by popularity contest after all. I actually prefer the fantasy version of our constitutional situation that implies the ‘rule of law’ has got at least something to do with it all. Sympathy for poor Sue Gray is appropriate and we should wish her luck in trying to think of something funny to say: To the extent it’s relevant, we already know the whole truth, but that seems to be something the executive is hell bent on proving worthless, so help us god.
IMO it’s equally probable that the greased pig will actually escape this time since Tory MP’s don’t relish the idea of a leadership fight that would fan the flames of the long running intra-party civil war and bring it into the open.
After all they will say an election is years away and BJ will have been chastened by the shock of what happened in PMQ’s yesterday and really has lost moral authority in the party so will be a quiet caretaker doing little but keeping the seat warm until a clearly popular successor is found perhaps a year before the next GE.
Are we nearly there yet?
I agree with your as usual pointed analysis except in one respect. Below is a link to an interesting take on just how fine a civil servant SG is in the grand tradition of giving neutral politically free advice.
https://fb.watch/au_WCvtqWk/
Excellent analysis.
Here are the terms of reference for this “investigation” – https://www.gov.uk/government/publications/terms-of-reference-for-the-cabinet-secretarys-investigations – published by the Cabinet Office on 9 December 2021, when it was being conducted by the Cabinet Secretary and not updated since, as far as I am aware.
“The primary purpose will be to establish swiftly a general understanding of the nature of the gatherings, including attendance, the setting and the purpose, with reference to adherence to the guidance in place at the time.”
At that time, only three alleged “gatherings” were included – 27 November, 10 December, and 18 December 2020 – but there appear to have been a series of these social events (and various other breaches of the rules, ever since the trip to Barnard Castle).
The distinct impression is being given that the government (or at least, government minsters and their advisers) thinks rules are for little people. That chimes euphonously with what we know about Boris Johnson’s approach to life ever since he was a teenager.
So this investigation is primarily a fact-finding exercise, which may be an appropriate function for a civil servant. While there may be some dispute about the interpretation of the facts and how they relate to the law, are any material facts about the “gathering” on 20 May 2020 in dispute?
Over one month later, when might we expect this “swift” investigation to be reach its “general understanding” of the facts? How long does it take to determine whether there was a gathering or not, who attended, and why it was held? Surely this was not an attempt to kick the matter into the long grass, or to provide cover to the government?
The secondary purpose of the investigation appears to be to determine “whether individual disciplinary action is warranted” although of course “any specific HR action against individuals will remain confidential”. But what ability does (and indeed should) Sue Gray have to recommend “individual disciplinary action” or “specific HR action” against the Prime Minister if he is found to have been at fault?
In 30 years time I fully expect Johnson will be listed been among worst Prime Ministers of all time, alongside Lord North, the Earl of Bute and Anthony Eden.
David
I have been sent an interesting link by a friend to an article on the U.K. Constitutional Law Association site by Ronan Cormacain: “Queen’s Consent and the Crown’s exemption from lockdown rules – are we all in this together?”
See https://ukconstitutionallaw.org/2021/02/15/ronan-cormacain-queens-consent-and-the-crowns-exemption-from-lockdown-rules-are-we-all-in-this-together/
The following paragraphs within the article refers to whether or not Crown land, including government buildings, such as 10 Downing Street, may or may not be exempt from the 2020 Coronavirus Regulations.
“Application of this rule to Crown land
However, the untitled regulation 8 creates an exception. In outline, a local authority cannot impose a restriction on Crown land unless it has the agreement of the Crown. (The regulation also grants exceptions for Government land, but for the purposes of this analysis, I am not considering that exception).
In greater detail, regulation 8 applies to public outdoor places which form part of Crown land and which include property to which section 73 of the Public Health (Control of Disease) Act 1984 (the 1984 Act) applies. Section 73 covers the application of the 1984 Act to Crown land, or more specifically,
any house, building or other premises being property belonging to Her Majesty in right of the Crown or of the Duchy of Lancaster, or belonging to the Duchy of Cornwall, or belonging to a government department, or held in trust for Her Majesty for purposes of a government department”
The article, written for a different reason than the current furore over “Partygate” may imply that there is a get out of jail card for our beleaguered PM if such government property was given such an exemption. Where my friend and I differ is that I do not believe it was granted such an exemption and therefore cannot be played.
Could I ask you to please comment if such an exemption exists for Crown land within the regulations and if it could be a get out of jail free card?
Thank you.