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.
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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.
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.
And it may be that the report keeps on delayed while new parties are uncovered.
https://twitter.com/davidallengreen/status/1481776450244165639
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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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