Sue Gray can’t make MPs’ decision for them

The inquiry cannot absolve Conservative parliamentarians from exercising their judgment on “Partygate”

January 17, 2022
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Malcolm Park / Alamy Stock Photo

The airwaves are full of Conservative MPs refusing to comment on Boris Johnson’s future until the civil servant Sue Gray delivers her findings on “partygate.” But it is a mistake to expect her report to provide a clear-cut verdict on the PM’s behaviour which will absolve them from exercising their own judgment.

There has been much speculation about what Gray’s inquiry is going to deliver, but it is equally important to be clear about what her inquiry is not. First, it is not independent. If ministers had wanted an independent inquiry, they would have asked a judge or other independent figure to conduct it. Instead it is an internal inquiry—typical of the kind conducted by the Propriety and Ethics Team within the Cabinet Office, which Gray used to lead.

The inquiry was commissioned by ministers and is being conducted by the civil servants who work for them. The findings will be delivered to the prime minister, who will determine what makes it into the public domain. Those expecting to see the full report may be disappointed—in the past the findings of some similar inquiries have been published only in summary. And Gray will not appear before parliament to answer questions on her inquiry in the way an independent chair might have done.

Second, Gray does not have any kind of legal powers. The terms of reference for her inquiry say that ministers, special advisers and civil servants should cooperate, and indeed that they should proactively provide any relevant information to the investigation team. For civil servants, failure to cooperate could be a sackable offence. But the suggestion that Gray was “blindsided” by some of the latest revelations in the Daily Telegraph demonstrates that not everyone has chosen to follow this injunction, and Gray has no power to compel them to do so.

This is why reports that the Metropolitan Police are waiting to see if Gray finds evidence of criminality before deciding whether to conduct their own inquiries are curious—the police cannot be confident that she will have gathered all the evidence that their greater legal powers might enable them to find.    

Third, Gray has not been asked to sit in judgment on the prime minister—which would be inappropriate for a civil servant. She has instead been asked to establish “a general understanding” of the nature of any gathering for which there is credible evidence, including who was there, where it was held and why, “with reference to adherence to the guidance in place at the time.” We should expect a factual account. It will not be for Gray to determine whether the Ministerial Code has been broken. There is nothing to preclude her putting forward her view, but it is much more likely that she will defer to Christopher Geidt—the adviser on the code. Even he would not be able to take a view unless invited to do so by the prime minister.

Fourth, Gray has no power to determine the actions that follow her report. The terms of reference invite her to take a view on the disciplinary consequences of the facts she identifies for individual civil servants involved. But as far as the consequences for ministers—including the prime minister—are concerned, even if Johnson does ask for Geidt’s view on whether the Ministerial Code has been broken, the final decision will be for him. As we saw in the case of Priti Patel—found to have breached the code by bullying civil servants—Johnson is not afraid to disagree with his advisers. Ultimately, the PM will be the judge of his own actions.

The report is unlikely to be a “marmalade dropper.” Given the steady drip of leaks about parties to the media, it is doubtful that there will be any new revelations about gatherings of which we were previously unaware. Johnson was careful to put the basic facts of his attendance at the 20th May “bring your own booze” event on record at Prime Minister’s Questions, so these would not be revelations in her report. And Gray will be acutely aware of the significance of every phrase and word she chooses to set out her findings. We can be confident that whatever she discovers will be documented in the cool, neutral language of the civil service.

Almost whatever Gray says, it is likely to be spun in different directions by Johnson’s supporters and detractors. The government spin machine has already been in action, claiming the report will exonerate the PM before it has even been written. Unfortunately for the Conservative backbenchers in whose hands Johnson’s future now lies, the Gray report is unlikely to provide them with a clear-cut answer.

Whatever the details the inquiry sets out, what is really in question is Johnson’s judgment and leadership. And MPs will have to demonstrate their own judgment and leadership when deciding what its consequences should be.