What is the Sue Gray investigation?

On 8 December 2021 Boris Johnson announced an investigation into allegations that Christmas parties in November and December 2020 broke the government’s own Covid rules. Johnson announced the investigation after a video emerged of former spokesperson Allegra Statton discussing the parties in a mock press conference. It was initially overseen by cabinet secretary Simon Case, but after a story leaked that his own staff had held a gathering, and that Case might have been present, the inquiry was handed to another senior official, Sue Gray.

Who is Sue Gray?

Gray is the second permanent secretary at the Department for Levelling Up, Housing and Communities. She previously worked in, and then ran, the propriety and ethics team in the Cabinet Office throughout the 2000s and 2010s. In 2018 she moved to Northern Ireland to head the Northern Ireland Department of Finance.

What is the investigation’s status?

The investigation is an internal government investigation and does not have the status of judge-led or other public inquiries. The terms of reference are set by the prime minister. Such investigations are normally how the civil service establish the facts of an allegation of wrongdoing and make recommendations to the prime minister.

Many cabinet secretaries, with the support of the propriety and ethics team, have conducted similar investigations in cabinet ministers at the request of the prime minister. These include Gus O’Donnell’s examination of Liam Fox’s conduct while defence secretary and Jeremy Heywood’s investigation into Damian Green when he was first secretary of state under Theresa May. However, the current investigation is unprecedented in terms of its potential political impact and the way in which it touches on the role of the prime minister.

What will the investigation cover?

The original investigation was to look at events in Downing Street on 27 November and 18 December 2020 and at the Department for Education on 10 December 2020. The investigation has expanded as allegations of more gatherings have come to light.

According to the terms of reference, the report will set out ‘a general understanding of the nature of the gatherings, including attendance, the setting and the purpose’. This will give an idea of the size of these gatherings and how many people attended (and perhaps what parts of No.10 they worked in), but also a sense of the nature of these gatherings, perhaps including how late they went on and how much alcohol was consumed.

Will Sue Gray say whether the parties broke Covid rules?

Probably. The terms of reference say that she will set out her evidence on the events held, ‘with reference to adherence to the guidance in place at the time.’ This implies that Gray might make judgements about whether these events breached government Covid guidance or law at the time. She might state whether she considers there is evidence of criminality – breaching Covid laws – and she has had access to lawyers to compare evidence against the regulations in place at the time. But it will then be up to the metropolitan police, if it chose to investigate, to take forward any action.

The judgement on whether the gatherings breached government guidance could prove complicated, since that is based not just on formal documents setting out government guidance, but also statements by ministers and officials in the media, parliament and in Covid press conferences about what people should and should not be doing.

The prime minister says he considered the event he attended on 20 May 2020 to be a ‘work event’, so Gray’s description or judgement on the ‘setting and purpose’ of various events could be crucial. Even if she doesn’t provide an explicit judgement on the difference between ‘work’ and ‘social’, her descriptions of events should allow MPs and the public to make up their own mind

Can she recommend action or take action?

Yes. Gray can make recommendations for individual disciplinary action towards officials and advisers, but any specific HR action taken against individuals would not be published in her report. It would be up to their line managers and civil service leadership to decide on HR action against officials. In the case of special advisers, it is ultimately up to the prime minister to decide if they should stay in post.

What about the prime minister?

Gray’s remit would allow her to tell us about the prime minister’s involvement in any events – whether he attended or whether he knew about them happening. It should also allow her to make judgements about his role more widely – for instance, if she is critical of the management of No.10 and its culture.  

Can she rule whether the prime minister broke the ministerial code?

She could, but she probably won’t. It is not unprecedented for a civil service inquiry to look into breaches of the ministerial code. The investigations into Damian Green, in 2017 and Liam Fox, in 2011, were conducted by the cabinet secretary, both concluding that the minister breached the ministerial code. However, it is more likely that Gray would not seek to answer this question. She could recommend that the prime minister’s adviser on ministerial interests, Lord Geidt, look into the prime minister’s behaviour, in which case the prime minister would be under pressure to allow Geidt to conduct his own inquiry. If Gray avoided this question entirely that would not necessarily mean she thinks there is no case to answer, but could simply mean she did not consider it part of her remit.

There could be several charges of breaches of the ministerial code levied against the prime minister, including its first general principle that ‘ministers are expected to maintain high standards of behaviour and to behave in a way that upholds the highest standards of propriety’. But the most relevant question is likely to be whether he breached the code on misleading the House of Commons in the answers he has given about whether these gatherings took place and whether they breached cCovid guidance. Ministers who ‘knowingly mislead’ the Commons are, by convention, expected to resign, so this is a serious issue.

How important is this investigation?

Since the investigation started, the government has at times declined to answer further questions about parties, arguing that the media, MPs and the public must wait for the Gray report to conclude. This implies that the investigation will answer all remaining questions about ministerial and civil service conduct. However, this may not be the case. The report is not likely to be published in full – some past inquiries have been, but the terms of reference say that only the ‘findings’ will be published. The report may give us more details about what happened, but the public are already able to make judgements on the pictures, emails and eyewitness accounts about gatherings that have leaked to the media.

Most importantly, the report may give us Gray’s own judgement about the nature of these events and whether they broke Covid rules, but she will not be able to reach conclusions on aspects where she doesn’t have evidence to make judgements: for instance, on the prime minister’s defence that he believed implicitly that one of the gatherings he attended was a work event. Finally, the report may include criticisms of those involved in organising events, or in the culture that led to them, but it is not the place of a serving civil servant to suggest sanctions for ministers or the prime minister.  

Will MPs get a say?

Yes. It is usual with a case this serious that MPs would have the chance to ask questions. The prime minister has said that he would return to the House of Commons to answer questions on Sue Gray’s report.  This is most likely to happen through a statement to the House, followed by a questions. There would not normally be a vote.

What are the problems with this inquiry?

This investigation has highlighted a number of problems with how standards are enforced and investigations handled. Gray is a government official and as such, no matter how thorough her investigation, she has effectively been asked to investigate her own political boss. As a civil servant she is impartial, but not independent. Her terms of reference are set by the prime minister, and the team conducting the inquiry work in close proximity to those they are investigating.

In the past, other inquiries have become controversial after pressure was put on those writing the report to alter their conclusions: the prime minister’s previous adviser on ministerial interests, Alex Allan, resigned after the prime minister rejected his conclusion that Priti Patel had broken the ministerial code. Given the political importance this inquiry has attained, there is a risk that public confidence in the standards system is undermined further if the report is considered to obfuscate or if the government spins, or ignores, its conclusions. The situation is further complicated because the other person who could have conducted an inquiry into matters concerning the prime minister, Lord Geidt, is unable to start an inquiry unless the prime minister asks him. It is for these reasons that several bodies, including the Institute for Government, have called for reform so that an independent watchdog with statutory backing is able to launch its own inquiries independent of government.

Update date: 
Friday, January 14, 2022

Original source – The Institute for Government

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