In the week that the findings of Sue Gray’s investigation are expected to be announced, what have we learned about the investigative process she is managing?
First of all, it’s important to remember that this is an internal investigation, and that it is not truly independent of the Government. As the lead investigator Sue Gray has been given a straightforward remit; to conduct “Investigations into staff gatherings in No 10 Downing Street and the Department for Education”.
Her terms of reference include investigating three specific gatherings in November and December 2020, but she has the freedom to consider any “credible allegations relating to other gatherings”. And the overall aim of the investigation is “to establish swiftly a general understanding of the nature of the gatherings, including attendance, the setting and the purpose, with reference to adherence to the guidance in place at the time”.
In common with many internal investigations, the investigator does not have decision-making powers. Her job is to find the facts and to paint a picture for the commissioner of the investigation that describes what happened, who was involved and whether those involved may have broken any rules in force at the time.
The responsibility for any decisions arising from her investigation will rest elsewhere. For civil servants, any alleged misconduct will need to be addressed under the service’s disciplinary processes. And for Ministers, their behaviour will need to be considered under the process set out in the Ministerial Code.
In common with most internal investigations, the terms of reference give the investigator the opportunity to flag up any potential criminality. This allows Sue Gray to share any evidence of potential criminal offences with the police, and to ask the Cabinet Office to pause her work if the need for police investigations arise.
In our experience this rarely happens, but the latest announcement from the Metropolitan Police suggests that “serious and flagrant” breaches of coronavirus restrictions will now be investigated by the police. Inevitably, this means that Sue Gray’s work will be suspended, and her report delayed.
So what has made this work so different from other investigations?
There has been widespread criticism in the media that the investigation is not truly independent, and perceptions have arisen that the findings will simply exonerate the principal characters involved.
The investigation is also being conducted in the full glare of public interest. Barely a day goes by without some political or media commentary on the evidence, the allegations, the conduct of the investigation and the behaviour of those involved.
Add to this the frequent statements by some notable interviewees protesting their innocence, and it would be surprising if Sue Gray is finding it hard to focus impartially on the evidence she is evaluating.
Finally, the main reason why this investigation is so different is that many people outside the process appear to have made up their minds about what it will find. The Government has committed to publish the findings of the investigation, but the sense of impatience is obvious in the media, and in the country at large.
The Times reported on 24 January that relatively few voters are waiting to read the Gray report to form a view of the issues. A poll conducted by YouGov for The Times reveals that “Fifty-one per cent believe that Johnson should resign as prime minister whatever Gray’s report says.” But we may not have to wait too long, as it seems today that publication of her full report is now imminent, given that the Metropolitan Police have no objections to her completing the internal investigation.
As investigators we are trained to avoid jumping to conclusions. We know that it is essential to gather the evidence, to corroborate what we find and to evaluate it dispassionately and impartially. And we know how important it is to resist pressure to “flex the findings”.
Few of us, however, will have conducted investigations in such febrile circumstances. Our sympathies are with Sue Gray as she approaches the end of her journey with this investigation. There is much still to come, and the stakes have now been raised by the police investigation, but it is essential that her work provides a sound basis of fact for the decision-makers to consider.
Your next investigation is unlikely to be quite so dramatic, but if you are about to start one and need any advice, please get in touch. We’d be happy to talk to you in confidence about what you might need, and how Verita can help by booking a free 30-minute consultation with Managing Director Ed Marsden.