Rishi Sunak is facing growing pressure to delay Sue Gray’s appointment by Sir Keir Starmer amid concerns that she could use “privileged information” to benefit Labour in the run-up to the election.
But there is a question mark over the exact scope of his oversight on the matter.
Ms Gray’s appointment as Labour’s chief of staff will initially be assessed by the Advisory Committee on Business Appointments (Acoba), which vets moves by ministers and senior civil servants.
Acoba will then recommend a period of gardening leave before she can take up the new role in Sir Keir’s team – which could be anything from three months to two years.
However, Downing Street insisted that Mr Sunak will act as the “ultimate arbiter” of any decision over Ms Gray’s appointment, sparking concerns that her departure from the civil service will descend into a political tangle.
The Prime Minister’s spokesman said on Friday that while Mr Sunak cannot block the appointment entirely, he could ultimately call for a longer waiting period than recommended by Acoba. It would be seen as an effective attempt to block her switch to Labour before the next election in less than two years’ time.
Here i looks at what the rules say about Acoba’s power, how the Prime Minister might overrule it, and whether this has ever been done before:
What do Acoba rules say?
Ministers and civil servants leaving office are subject to rules regarding appointment in other sectors, known as the Business Appointment Rules.
According to Acoba, these are designed to prevent top officials being able to profit from their knowledge of and contacts within Whitehall, and to “prevent any perception of wrongdoing”.
Chaired by Lord Pickles, a former Tory MP, Acoba normally deals with commercial conflicts of interest, since departures by civil servants to party positions are rare.
However, it also scrutinises appointments by senior civil servants to ensure they uphold the Civil Service Code’s core values of integrity, honesty, impartiality and objectivity.
Acoba says that in doing so it is checking for specific things, including whether a departing civil servant might have been influenced in carrying out their official duties in the hopes of gaining a particular job.
Committee members also scrutinise whether a former civil servant might improperly exploit privileged access to contacts in Government or “sensitive information” in their new job, and if their new employer has recruited them in the hopes of gaining special access to sensitive information about the Government.
The rules apply to all civil servants for two years after they leave service, but Acoba is only brought in to oversee senior officials.
While it does not have the power to veto an appointment altogether, Acoba can recommend a delay in a job being taken up, with the maximum delay being two years from the last day in service.
Current rules also allow Acoba to describe a particular appointment as “unsuitable”, which the anti-corruption watchdog claims often acts as a “powerful deterrent”.
It then draws up a list of advice, which is presented to the Prime Minister to make a final recommendation on the length of any potential delay.
The Prime Minister usually accepts this advice in full, but Downing Street insisted that Mr Sunak could override Acoba’s advice since it is a non-statutory body.
What is the Prime Minister expected to do?
Acoba is expected to recommend a three-month period of gardening leave for Ms Gray before she takes up the role as Labour’s chief of staff, according to The Times.
This will leave Mr Sunak in a tricky position, as he faces growing pressure from Mr Johnson’s allies to impose a harsher delay of up to two years.
While technically Mr Sunak holds the power to make the “final” decision on Acoba’s recommendations, and can in principle overrule it, doing so would be unprecedented.
Asked on Friday if Mr Sunak would accept Acoba’s recommendation, the Prime Minister’s spokesman said: “I obviously can’t jump ahead of that process, but you’re aware of what that process is… the Prime Minister will take advice and make a determination based on that recommendation by Acoba.”
Even if Mr Sunak did choose to override Acoba’s advice, the Prime Minister’s recommendation would ultimately only be advisory.
Both Labour and Ms Gray would technically be free to ignore Mr Sunak’s advice on the basis that it differed from Acoba’s recommendation.
However, Lucy Powell, the shadow culture secretary, said the party would “absolutely” abide by Acoba’s advice.
Many have noted that Ms Gray’s appointment is intended to demonstrate Labour’s commitment to integrity after her tough response to the Partygate revelations, and that ignoring Acoba would undermine the purpose of her hire.
Has this ever happened before?
There are many examples of Acoba being ignored in the past, with its current chair Lord Pickles even lamenting last year that the body is “essentially toothless”.
Dominic Cummings also broke Business Appointment Rules by failing to seek permission from Acoba before setting up his Substack blog and offering consultancy services after quitting as a senior Downing Street advisor in 2020.
It prompted Lord Pickles to write to Michael Gove, then the senior minister in the Cabinet Office, notifying the Government of the breach. He also wrote a letter to Mr Cummings demanding an explanation for the oversight, but the request went ignored.
Meanwhile, Mr Johnson failed to inform Acoba that he would be resuming his £275,000-a-year column at the Telegraph after he resigned as foreign secretary in 2018.
Some have likened the current situation to Sir Tony Blair’s appointment of the senior diplomat Jonathan Powell as his chief of staff in 1995.
However, Mr Powell’s move from the Foreign Office to Labour failed to ruffle the feathers of either Acoba, which was established in 1975, or then-prime minister John Major.
Critics have also noted that Mr Powell’s appointment did not come hot on the heels of him presiding over a sensitive inquiry in which neutrality was a key consideration.
Ms Gray, who joined the civil service in the 1970s, became a household name last year when she was appointed to lead an official inquiry into No 10 parties during lockdown.
Her report, published in May last year, found that there had been widespread rule-breaking of Covid rules within Government, and criticised “failures of leadership and judgement” in Downing Street.
Ultimately, intervention from either Acoba or the Prime Minister is highly unlikely to thwart her plans to join the Labour party.
What it might do instead, is hand the Conservative party a potential weakness in the Partygate narrative and they will try to exploit, and offer them a new weapon to deflect allegations of “sleaze” and “revolving doors” back onto Labour.
It will also hand a lifeline to Mr Johnson, who is likely to utilise fresh questions over Ms Gray’s loyalties to defend himself against the results of an official inquiry into whether he misled MPs over Partygate.