24th January 2022
Another week, another inquiry.
This new one was announced this morning:
New: Cabinet Office will now conduct inquiry👇 pic.twitter.com/yLW5RnwAQU
— Mollie Malone (@Mollie_Malone1) January 24, 2022
Yesterday there was not going to be an inquiry – and the Lord High Chancellor (who is also Deputy Prime Minister) was sent out to say so on television:
Dominic Raab says that in the absence of a formal complaint there will be no specific investigation into Nus Ghani’s claims @RidgeOnSunday https://t.co/2ojSF6th0W
— Sophy Ridge (@SophyRidgeSky) January 23, 2022
Nusrat Ghani MP – the complainant – had yesterday made a sensible, crucial point in response to the contention that she should have complained to the Conservative party.
It was a government business matter – not a party political matter:
My response to No10 statement pic.twitter.com/Fyp08t9pC1
— Nus Ghani MP (@Nus_Ghani) January 23, 2022
Perhaps Boris Johnson does not comprehend this distinction between party and state.
Anyway, that position could not hold, and so an inquiry was announced.
And this led to another sensible, crucial point from Ghani:
My response to No10 announcement pic.twitter.com/Y3NOqQAk5G
— Nus Ghani MP (@Nus_Ghani) January 24, 2022
“I look forward to seeing the terms of reference.”
Regular readers of this blog (and my tweets) will know that the shape of the terms of reference (as well as control over evidence flows) will tend to shape the results of any investigation or inquiry.
As techies say: GIGO.
Only the naïve think that just because there is an investigation or inquiry then – as if by magic – the resulting report will be suitably scathing.
What are called ‘whitewashes’ do not have to be by reason of deliberate cynical decisions by those investigating or inquiring – but instead can come from the terms of reference or the evidence made available.
Wise ministers facing investigations and inquiries know this – and government lawyers certainly do.
And so, it is refreshing to see, do wise complainants.
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This has the feel of a pile on. Nusra waited over a year to go public which has to cast some doubt. Boris’ ministerial picks have been notable, even laudable, for their diversity if not for their competence. Javid has trumpeted being the first muslim leader and at least one prominent Tory peer is too. So the idea that a whip would make such a crass comment which so obviously could backfire seems unlikely. To say it is a 50-50 is charitable. The ministerial bench is so poor it would seem unnecessary to invent reasons beyond “your performance was weak and we had to make way for xx”.
Yes, one can argue that there is a government issue here but it is party first and for once Boris was right to urge her to ask for a party inquiry. That would have been the logical start which could be elevated further depending depending in events. The notion that every incident needs a government inquiry is overworked. BTW it seems illogical to decline to go the the party process for fear of retribution but claim that all she wanted was a higher process. Which goes back to the question of competence.
Re your last point, I don’t see the lack of logic in her wanting what you call a ‘higher process’ than anything the party might put together. Seems quite sensible.
And there are enough reports of anti-Muslim sentiment among Tory party members to give this matter a far wider significance.
Well of course there’s an element of pile-on. That’s how the game is played. You pick your time to settle a score.
That has no bearing on the merits, or otherwise, of the claim.
And from my understanding, Government whips have been doing far, far worse for longer than I’ve been alive. Sometimes the cruelty is the point… Alternatively, if I were a minister, and a whip tried to sack me on the basis of competence while Nadine Dorries is still on the Front Bench, I’d be citing Arkell v Pressdram in your general direction.
The chief whip’s reaction was very telling.
I was very puzzled by the Chief Whip’s comment.
How does he come to the conclusion that he is the unnamed speaker if he didn’t say it and isn’t the unnamed speaker?
A bit like the present King of France getting upset at being called bald.
Because he was the Whip who fired her so he would have know she was referring to him. More puzzling is why she would refrain from naming him unless it was because she worried he would sue her, which raises questions.
Why. She was obviously accusing him since he was the one who gave her the news. Perhaps she wanted to avoid turning this into a dispute about what was said since that would distract from the substance of her accusation.
The Chief Whip knew that the press would try to find out who the unnamed whip was. By going in the offensive he avoided the inevitable guilt by implication that comes from being “unveiled” (perhaps that was her plan but that assumes a level of real politik that she has never displayed). It worked. Attention is focused on Boris and his advisors rather than the whip.
The defamatory claim was risible. He claimed it was him but then “I didn’t say that, guv”
Hmm. It’s a bit like Blasey Ford and Kavanaugh. Why not sooner? Time makes it harder to prove or disprove which makes the possibility of making it up in order to settle a score more plausible.
If we believe that Mr Johnson is in charge of HMG as the Prime Minister and we further believe that he (and his advisors) decide who should be in cabinet and the broader government, he must know why Ms Ghani was sacked from it. Therefore, he is ordering a review into something that he (personally) should have been on top of. Perhaps, like his 25 minute attendance at a party (or work gathering!) that nobody told him was breaking the rules he set, an underling failed to explain why the lady was axed…
We all know that Bojo should never have been PM (or even an MP), but this type of “defence” is surely beyond the pale, even for him. He is essentially arguing that he is not to be blamed owing to his incompetence.
Perhaps I have this wrong, but the issue seems to be less about the prime minster’s decision to ask for her resignation in 2020 – along with a number of other ministers who were sacked, demoted or chose to resign around the same time – and more about what a whip said to her about that decision and the conversations leading up to it. And then, despite the prime minister saying he took the claims serious, total inaction in response to concerns that she raised at the time.
As to a civil servant “establishing the facts”, how much of the relevant conversations will have been recorded? Do civil servants attend and take minutes of meetings where the prime minister discusses reshuffles? (Was the cabinet secretary there, in which case perhaps this is another job for Sue Gray?) Does anyone keep records of conversations between whips and MPs? Even if there are formal records, can disclosure be required? The best evidence may be contemporaneous notes made by the complainant.
I suspect the most we can expect is “she said, he said”. And possibly an acknowledgement that concerns were raised at the time but no formal complaints procedure was started (not that a complaint needs to be made formally for it to be an actionable nonetheless).
Perhaps this last is the one that can stick – that a complaint was made of an improper procedure, and (perhaps due to inertia or laziness, or a hope that things would turn out ok) no action was taken to address the complaint or mollify the complainant.
Even if discrimination or procedural unfairness can be established, I think limitation periods would make a legal claim based on actions in February or June 2020 out of time. But that does not stop political damage being caused. And so the wheel turns.
I think this is one for Lord Peter Hennessey.
Time to hit his books for the manner in which past Prime Ministers wielded the knife during reshuffles.
Yes, constitutionally what seems most extraordinary is the PM’s response to Ms Ghani that there was nothing he could do – as though he had no authority to decide who is appointed to ministerial office in his own government.
Didn’t Mark Spencer more or less admit he said these things when the lady in question made no mention of names ,so how does he know she was talking about him ?
I found that he was more or less putting himself in it & realised it then deleted the tweets & then tweeted again but with slightly different wording. In a court of law would someone not be found guilty if they blurted out “oh it’s me she is talking about & it’s complete nonsense & I’m looking at bringing a libel case” bc to me tbh that seemed exactly what it was. How could he possibly know the lady was talking about him when she used the phrase “whips” she didn’t say Chief whip or Head whip or anything that could identify him in person, she only mentioned a whip brought up her religion in the sense “that people were nervous bc of her Muslumness” .
It’s weird he’d be right out the traps on twitter late at night saying what he did only to delete,there is no delete now bc of the Cloud btwn both Google & Apple plus there are tiny bits of the tweet left on their servers as well as whatever device he is using on that as well as the Cloud that can be forensically recovered, like WhatsApp. It doesn’t delete your old chats it leaves small bit on phone unless hard reset but also on their Cloud,I’ve posted this article multiple times on twitter trying to explain there is no delete now & hasn’t been since about 2014 when they made you sign into browers now so they could protect you with the cloud but that also means there are tiny pieces of data relating to everything you do in that browser unless it’s Tor or a Torrent which is anonymous. https://www.deccanchronicle.com/technology/in-other-news/290716/beware-whatsapp-silently-rolled-out-an-update-allows-recovery-of-deleted-chats.html
Unless someone in the PM’s circle confirms that muslimness was discussed in the decision than that is exactly what this will be: he said, she said. It would also explain Boris’s reaction. If he had not dumped her for being muslim (guilty if many things but this seems most unlikely given his general demeanor), then it would be a party discipline issue: a party official had apparently abused the race/religion of another party member. Given how much the Tories had trumpeted their diverse ministerial selection, it just rings false that they would have used Islam as the reason to fire her.
I think this risks placing more weight on ‘terms of reference’ documents than is warranted. I would imagine (not having researched the question) that the terms of reference for a truly independent inquiry, e.g. one conducted by a former judge, predict the scope of the actual investigation pretty well. But when the inquiry isn’t particularly independent, the formal terms of reference surely will be less important than the investigator’s sense of what their boss wants them to do and say?
I think Mrs Ghani reads this blog.
Wouldn’t surprise me if a number of MPs and staffers do, too, frankly.
She does follow me on Twitter, so who knows?!
Understandably, the manner in which the Conservative Party undertakes candidate selection, another issue raised by Ghani and others yesterday, will fall outside the terms of reference of this inquiry.
But will it fall outside the inquiry when Ministers are asked about what steps the Conservative Party will take to review its candidate selection process?
Will the party insist as with Gray that nothing may be done before the Ghani Inquiry has reported and its findings been given due consideration?
The long grass is becoming flattened by all the balls being kicked into it.
As you say, the Terms of Reference are crucial. The Sue Gray terms of reference may well render her report of limited use. But so is the status of the person conducting the inquiry
This is an inquiry into an exercise of a prerogative power to appoint and dismiss ministers. There were proposals in the period 1638 to 1641 for the Commons to have a veto over an appointment of, for example, the Chancellor of the Exchequer, but Charles I resisted these furiously as they would have reduced his role to that of a Venetian Dog. The constitution under which Charles II was restored in 1660 was the old constitution including the monarch’s right to appoint individual ministers. The Founding Fathers gave the Senate (at that time appointed by the States not directly elected) the power to veto a presidential nomination but this change has never been made in England of the United Kingdom. So this Inquiry must look into at least any advice given to the Prime Minister in exercising the prerogative power, probably what weight if any he gave to some of this advice and potentially into factors that may have only been in his mind.
In the case of an appointment of a minister, just as of a prorogation, the prerogative power is the Queen’s, exercised on the advice of the Prime Minister. The Miller case on the Prorogation established that advice to the Queen is justiciable.
The Inquiry will not be a judicial procedure. However just as in the Miller case the memoranda of Nikki de Costa were regarded by the court as evidence, the findings of the inquiry and any documents or transcripts of evidence or notes of evidence will be admissible in court to enable findings of fact to be made.
Although the report of the inquiry will undoubtedly lead to Parliamentary activity which cannot be considered by a court owing to Article IX of the Bill of Rights it may also lead to actions in the Conservative Party which are not so excluded. It might also lead to some application to he Courts by Nusrat Ghani and if the facts established by the inquiry provided adequate grounds for a criminal prosecution, the CPS might rely on the report.
There are precedents for a civil servant investigating a minister’s conduct and reporting to the Prime Minister. Sue Gray herself has conducted such investigations and while the facts she has established may have made an offer of a resignation inevitable, the Prime Minister of the day has always had the final decision as to whether to accept that resignation.
The terms of reference of the current investigation do not require Sue Gray to consider the Prime Minister’s own conduct and in some respects appear to exclude that. The fracas that is taking place over her exact role at a minimum proves that appointing a serving civil servant to investigate events in which a prime minister was implicated is not comfortable.
With regard to this inquiry, one possible finding of fact could be that the Prime Minister was advised by the Chief Whip to dismiss Nusrat Ghani because of her faith. This would not necessarily involve asking the PM any questions at all – for instance an Inquiry could find an email or a note proving that the Chief Whip advised on this basis or the Chief Whip might admit that he had done so – for instance the statement “colleagues find Nus citing her faith very irksome”. would show what had happened.
However it appears that Nusrat Ghani told the PM that she had been told one reason he sacked her was her faith and his response was – entirely inappropriately given that this was an exercise of a prerogative power – to make a complaint to the Conservative Party. Prima facie this means that an inquiry will be incomplete unless he too is required to answer questions as to why he did what he did.
Potentially this inquiry could be even more difficult for a civil servant to conduct than the partygate inquiry. So the question of who should conduct an inquiry which if done properly will establish facts about a prime minister’s conduct that could lead to court proceedings is raised by this inquiry, perhaps even more sharply than by the partygate inquiry.
As others have noted this is going to come down to ‘he said, she said’ …unless there was a third party present or there was an independent recording.
To me a vital lesson of this new crisis is something many sectors learned years ago when dealing with employment matters (which this really is) and that is that everything is witnessed and has a solid documented record.