“Ambushed by cake” or not, Johnson broke the rules

There is simply no way to square his birthday gathering with the regulations in force at the time

January 26, 2022
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Johnson and Met Commissioner Cressida Dick in 2019. PA Images / Alamy Stock Photo

It is the fate of some players in the drama of history to be associated with a phrase that is so perfect in its misjudgement of the public mood that it brands their image for ever. Quite often that phrase involves cake: see Marie Antoinette. In the case of Conor Burns, currently a junior minister in the Northern Ireland Office, the cake-related phrase of doom is likely to be the one that he came up with in trying to defend the conduct of his current leader during lockdown: “ambushed by cake.” Tragically for Burns, the sacrifice of his credibility was fruitless: the point he was trying to make was completely irrelevant to the legal and political quagmire into which Johnson’s conduct has got him.

It is easy to be overwhelmed by the tidal wave of party-related allegations. The particular allegation Burns was referring to concerns a get-together that occurred on Johnson’s birthday on 19th June 2020. Precisely what happened is unclear, and the investigation by the Metropolitan Police announced yesterday may turn up more facts not yet in the public domain. But a No 10 spokesman told the BBC that “a group of staff working in No 10 that day gathered briefly in the Cabinet Room after a meeting to wish the Prime Minister a happy birthday. He was there for less than ten minutes.” So, even before the Met’s investigation concludes, we can safely assume that that was the least that happened.

At that time, regulation 7 of the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020, as amended on 1st June 2020, made it an offence for any person to participate in a “gathering” indoors that consisted or two or more persons from different households. There were exceptions, the only remotely relevant one being where the gathering was “reasonably necessary for work purposes.”

Was there a “gathering”? “Gathering” was defined broadly as being “when two or more people are present together in the same place in order to engage in any form of social interaction with each other, or to undertake any other activity with each other.” On No 10’s account there was “a group of staff” (so at least two, apart from Johnson himself, but probably more, with other reports suggesting up to 30) who “gathered” (leaving their normal stations to be present together in the Cabinet Room) “to wish [Johnson] a happy birthday” (a form of social interaction and not something that appears, on any credible view, to be reasonably necessary for work purposes). Moreover, Johnson was there for a period that, we can safely assume, was not much shorter than 10 minutes (otherwise No 10 would have given us a shorter period): so not a brief encounter that was too fleeting to count as a “gathering.” And—coming back to Burns’s hapless phrase—it was completely irrelevant to the offence whether Johnson was “ambushed by cake”: surprised or not, he was, and remained, at the gathering.

It has been suggested that Johnson believed that—at the time—all Downing Street staff were in a “household bubble” and could meet freely within its walls. As any of the government lawyers to hand would have told him, that idea was, to use the technical legal term, complete tosh (and rightly so, given the need to limit all social interaction to what was necessary). It also stretches credulity that Johnson believed it, when only nine days earlier he had given the public a lengthy (and on that occasion accurate) explanation of how “support bubbles” and “household” rules actually worked.

So on No 10’s own account, there is no conceivable way in which Johnson was not in breach of regulation 7: a breach for which many others were required to pay a penalty. Moreover, this was no trivial rule: it was the centrepiece of the rules designed to restrict social interactions liable to risk transmission of a deadly disease to the minimum necessary for life to continue. It is the rule that prevented families up and down the country from having their children’s friends round for their birthday or from going to see their elderly mother for what could be her last birthday.

That is the reason, of course, why the question of Johnson’s non-compliance with the rule is so politically damaging—and why the complaint that it was only a minor breach just spectacularly misses the point. Given all of this, and given what No 10 itself said, it is hard to see how the Met could possibly have refused to investigate for so long.

But the “only a minor breach” complaint misses the point for another reason, too. Just as former Lib Dem minister Chris Huhne’s main offence wasn’t speeding, but dishonesty in trying to cover it up, Johnson’s attempts to deny what has happened should lead to his ejection from office. As the Ministerial Code makes clear, it is a strong constitutional convention—and one on which parliament’s effectiveness in holding government to account depends—that ministers do not knowingly mislead parliament and that if they do so they resign. Yet Johnson told the House of Commons on 1st December 2021 that “all guidance was followed completely in No 10”: a claim that was not true and which (as we now know) he cannot plausibly have believed to be true. Just as it was the cover-up that led to Richard Nixon’s downfall, it is that statement, as much as the original offences, that should lead to Johnson’s resignation in disgrace.