Waiting for Gray
‘Ha ha. Godot will be here before the Chilcot Report. Ha ha’. If I heard this once I heard it a hundred times, from stand-up comedians, newspaper cartoonists, and occasional acquaintances, always delivered as if it was both original and hilarious. It was irritating to me as a member of the inquiry not because of the time it took to finish the report, which I found as frustrating as everybody else, but because I knew that it would be finished and that it would not be the whitewash widely predicted. I was sitting in the audience at the Hay Festival as Ian McEwan lamented that this was going to be yet another establishment cover up if it ever appeared. I tried but failed to ask whether any of his books had been reviewed before they had been completed.
As it became apparent that the report would be published in July 2016, and interest switched to what it was going to say, it was fascinating to read the confident accounts of our findings and who we would criticise. It became quite the game to try to work out where these notional leaks had come from. Bits of draft report were in circulation because of the so-called ‘Maxwellisation’ process (I’m not sure the same terminology would be used today) that allowed people who were being criticised to see the criticisms so they could point out errors of fact or offer new exculpatory facts. But they saw only what referred to them, and then some changes were made because of their submissions. Many of the purported accounts of what the report would say were forms of expectation management by those who anticipated criticism or hoped others would be. As these leaks as often as not completely missed the mark they had certainly not come from members of the panel or the secretariat, and nor we assumed from the responsible person in the Cabinet Office – a certain Sue Gray.
I have been thinking of all of this as speculation swirls around Gray’s own report, to be delivered sometime this month to the Prime Minister, to describe for him events at No 10 in which it turns out he was closely involved. The scale is of course much smaller, we were covering eight years of intense conflict, and it took us seven years to do so, and she has had a few weeks to find out about some parties. But we were talking about a past government and she is talking about the current one and so her report is potentially more consequential. The implication in Boris Johnson’s replies to Keir Starmer’s demands for his resignation at PMQs last Wednesday was that was a matter only to be considered when Gray’s report was received. So it is not surprising to read authoritative accounts in the media about what she will or will not say, even though the only person who actually knows is Gray herself and it is highly unlikely that she’ll be leaking or that she has yet fully made up her mind exactly what to say. She may (or may not) be struggling to keep up with the latest stories about hitherto unreported parties.
It is now regularly pointed out that she is not truly ‘independent’ because she is a top civil servant. This made me think about the accusation levelled at the Iraq Inquiry that as members of the ‘establishment’ we were incapable of pronouncing on the follies of other members to whom we owed our first loyalty, more so than to our own consciences and reputations. We were however aware of the low expectations surrounding the Inquiry and this shaped our approach (and was the main reason why the Inquiry took so long). We had to get out as much evidence as possible (which required extensive declassification of materials) to produce what we called our ‘reliable account’. The advantages of this approach were that it provided the foundation for our criticisms, it pushed aside any suggestions of a ‘whitewash’, and allowed those who did not agree with our interpretations, or had other angles they wished to explore, to do their own research.
Apart from the time it took I think this approach served us well and if I was advising Sue Gray I would urge her to do the same. The facts, set out fully and carefully, without superfluous editorialising, can be effective because the accumulation of detail points to the conclusion. There is always the old Watergate question – ‘what did [Johnson] know and when did he know it?’ - It would help Johnson if there was evidence, to take an example, that he was told explicitly that that these were work gatherings. Should such evidence be absent then all Gray needs to do is to point that out.
This leads on to a question that also dogged the Iraq Inquiry. Ours was not judicial and we were in no position to pronounce on the legality of the Iraq War, although in describing how the legal advice developed and changed we provided some pretty clear pointers. Likewise Sue Gray is not a judge which is why she may not pronounce on whether the rules were broken, although she might record what the lockdown laws required. What was and was not allowed is not an area of huge nuance and complexity. But while all this may be relevant for Johnson in trying to avoid prosecution, as he acknowledged last Wednesday it is likely to appear as a ‘technical’ get out to those furious about No 10 disregarding the restrictions most people willingly accepted, even at times of great stress and sadness.
There is a distinction, which works for me but not, I discovered during the Iraq Inquiry for many lawyers, between legality and legitimacy. In the end, whether one judged that, in some technical sense, the war was legal, because of its weak rationale, lack of domestic and international support, and painful, chaotic aftermath, it came to be seen as illegitimate. Equally even if Johnson can find a way to demonstrate that somehow he was not in breach of those strict rules that he had set down for the whole country his actions and those of his staff will still be viewed as illegitimate. Gray’s report will strengthen or weaken that impression, but I suspect it is too late for her to change it.