Lawyer Gareth Roberts looks beyond the breaking of lockdown rules to the wider implications and legal standing of the much anticipated Cabinet Office report

Rarely has a nation awaited the publication of a Cabinet Office inquiry with such excitement.

For some, the hope is that the publication of the report into alleged lockdown breaking parties held in Downing Street in 2020, that has been undertaken by the Second Permanent Secretary to the Department of Levelling Up, Housing and Communities – the now-famous Sue Gray –may offer respite to a beleaguered Prime Minister.

For others, the expectation is that the results of the inquiry will be a final nail in the coffin of the premiership of Boris Johnson who has demonstrated a cavalier attitude towards both the constitution and the truth. 

Without a doubt, the politics of the moment will see both sides making a claim in favour of their preferred outcome. But, what, actually, is the legal standing of the report? And where will its publication actually take us? 

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Evidence

When he announced the inquiry, the Prime Minister stated that it would establish, in fact, whether there had been any breach of the lockdown rules by himself and/or Downing Street staff. 

In answer to a question across the floor of the House, he added that any suggestion of criminal activity would be referred to the Metropolitan Police.

Both parts of that statement are significant. 

The fact that he announced an internal cabinet inquiry meant that Sue Gray has had the power to interview witnesses, obtain evidence, and peruse internal documents, emails and other forms of communications. 

But, what she cannot do is make recommendations. If she unearths any breaches of discipline by civil servants then they will be dealt with by the Permanent Cabinet Secretary, Simon Case (who, interestingly, recused himself from any involvement as he had attended one of the events). Any breaches by ministers would be dealt with by the Prime Minister himself – which could see the Prime Minister passing sentence, on, err, the Prime Minister.  

A similar inquiry was held recently into the allegations of misconduct by Home Secretary, Priti Patel – where, even though, in fact, the Home Office Permanent Secretary, Philip Rutnam, established wrong-doing by Miss Patel, the Prime Minister decided not to take any action. 

Johnson almost certainly hoped that the Sue Gray Cabinet Office Inquiry would go the same way, with a finding of fact, regardless of how adverse it was, being ignored by him – before being left to quietly rot in the annals of history, as he went back to reminding us at every opportunity how he got ‘Brexit done’ and did jolly well, with the Booster roll out. 

However, because of the second significant part of Johnson’s statement, this inquiry is likely to be very different from the inquiry into Priti Patel. Any evidence of unlawfulness is bound to be referred to the Metropolitan Police. 

It may be, as was initially suggested by Dominic Raab, that Downing Street hoped that the Metropolitan Police would not investigate historical breaches of Coronavirus Regulations. To her credit, Cressida Dick, the Metropolitan Police Commissioner, has made it clear that it will investigate any “flagrant and serious breaches of the COVID regulations”.

True to her word, it seems that Sue Gray has unearthed such breaches, as the Metropolitan Police Services have announced that they would now be investigating the allegations of breaches of lockdown rules.


Misconduct

This announcement prompted two reactions from Downing Street: first, it was suggested that the Metropolitan Police’s investigation would prevent the publication of the Sue Gray report. They followed that up with an assertion that as the penalty for any breach was a ‘fixed fine’ then the Met Police were wasting time and money by conducting an investigation – it was, they spun, a trifling distraction. 

Both reactions amount to be little more than wishful thinking.

First, with regard to the Police investigation buying the Prime Minister some time, it is clear that there is no good reason in law for the police investigation to stymie the publication of the Sue Gray report – indeed that would be like an individual who is being investigated by a company for allegations of, say, fraud or sexual misconduct, being saved from summary dismissal because the police were investigating the same thing. It is possible in law that both the company (or in this instance the Cabinet Office Inquiry) and the police could share information as the evidential weight would still be the same. 

Nor, is the suggestion that this is a trifling matter necessarily correct either. Misconduct in a Public Office is a serious common-law offence that has a sentence of up to life imprisonment.

The elements of the offence are summarised in a 2004 ruling, which found that the offence of misconduct in a public office is committed when:

“A public officer acting as such, wilfully neglects to perform his duty and/or wilfully misconducts himself, to such a degree as to amount to an abuse of the public’s trust in the office holder, without reasonable excuse or justification.”

In the midst of a pandemic, where over 175,000 people have died, and the Government unveiled limitations on the liberty of its people which are absolutely unprecedented in peacetime, it is not beyond the realms of possibility that any breaches of these COVID Regulations by the Prime Minister himself, may amount to an offence of misconduct.


No British Prime Minister in history has ever faced an allegation of Misconduct in a Public Office. Further down the line, the Director of Public Prosecutions has a massive decision to make as to whether such a charge should be laid against the Prime Minister. 

Before it comes to that, however, the more immediate problem that the Prime Minister might face, which could bring his premiership to a swifter inglorious conclusion, is the potential allegation that he misled Parliament. 

At Prime Minister’s Questions in December, he told Keir Starmer, that “all guidance was followed completely at Number 10”.

He followed that up a week later, with his assertion that “I have been repeatedly assured that there was no party and no Covid laws were broken.”

The Sue Gray report may conclude that the facts contradict these assertions which will take the matter out of the hands of the Prime Minister who, one would hope, will see himself bound by the rules of Parliament and our unwritten constitutional conventions. 

Paragraph 11.40 of Erskine May, which set out the unimpeachable rules of Parliament, states very clearly: “Ministers who knowingly mislead Parliament will be expected to offer their resignation.”

When you look at the life and career of Boris Johnson, it’s clear that he is a man who possesses, at best, a laissez-faire attitude towards the law, but, despite this, it may well, be the laws that he put in place, and the laws that he is bound to uphold that may well see his term as Prime Minister brought to crashing end.  

Gareth Roberts is a barrister

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