Brexit, public procurement, and Dominic Cummings

9th January 2020

Yesterday on the Financial Times website is a post by me on the Prime Minister’s adviser Dominic Cummings’ approach to public procurement (set out most fully here).

Articles for the FT and any other mainstream media site have to be a certain length and in a certain style – but here I can add more background and explain more fully what this is about and why it (probably) matters.

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To start with: what is public procurement?

One good way of understanding public procurement is the difference it makes to what public authorities can and cannot do, compared with what private individuals and companies can and cannot do.

A private individual or a private sector company can – at least in theory – contract with whoever they want, subject to the general law of the land.

A private individual or private sector company seeking a supplier is not generally obliged to hold competitions, to advertise, or even contract with the lowest or most economical seller.

(Yes, there are various laws against racial and sexual discrimination, and so on – but the commercial aspects of the bargain are largely unregulated for private entities.)

In essence, a private individual or a private sector company is free to make a bad bargain, and to pick and choose its suppliers as they wish.

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And, but for the law of public procurement, the same would be the general position for public bodies, subject to their general legal power (or “vires” as lawyers would call it).

But public bodies are not generally free to make a bad bargain, or to pick and choose its suppliers as they wish.

Public bodies cannot just hire and fire suppliers as they wish.

The law of public procurement instead regulates what public bodies can and cannot do when they are making purchasing decisions – whether for goods, services, or grand development projects – from paper clips to aircraft carriers.

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Public procurement is about process – the principles and procedures public bodies must follow when making purchasing decisions.

The principles are broad and apply to all purchases, while the detailed procedures – set out in long regulations – are usually for high-value purchases.

The principles of public procurement are straightforward and commendable.

Purchasing authorities must advertise and specify what they want; they must set out and follow a transparent process; they must apply evaluation criteria consistently; they must treat tenderers equally and must not discriminate in favour of incumbent suppliers or national champions; and, in the event the public body fails to accord with such principles, the disappointed tenderers must have a remedy.

Much of the applicable law for these principles comes from the European Union.

This is because the law of public procurement is as much a part of the EU Single Market as competition law or the law regulating State aid.

Public contracts are lucrative, and so the markets for those contracts should be opened up to all potential suppliers, especially those from outside the member state.

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Described in the way above, the law of public procurement is a Good Thing.

Who could possibly be against?

Well.

There is a difference between neat theory and messy reality.

In practice, the law of public procurement (at least for high-value contracts) is not only subject to these broad, sensible principles but also prescriptive codes set out in pages and pages of regulations, paragraph after paragraph, sub-paragraph after sub-paragraph.

These regulations convert any major purchasing decision into an elaborate, lengthy administrative process.

And this thereby means that purchasing decisions are (or seem to be) often captured by process.

And as tender exercises are expensive and time-consuming, they in turn tend (no pun intended) to be dominated by large specialist companies who can afford to sink months (even years) of time and thousands of pounds on each bid, without any guarantee of success.

Often the suppliers assume that they will lose more of these bids than they will win, and their commercial models reflect this.

And when they win, they can then sub-contract the work anyway.

Small and medium sized enterprises (SMEs) do not have a real hope of winning these tenders – as any long tender process is a huge burden, with a great deal of work without the prospect of any payment.

For SMEs to bid for such contracts routinely is impossible.

And the public sector bodies will not have any problem will this: there is a process to follow, and they have no costs pressures for the process to be any speedier or cheaper for anyone else.

Some public procurement exercises are conducted at the most leisurely of paces, without any thought for the commercial burden this places on potential suppliers.

The result is, in practice, a cosy, settled relationship, with the same small group of suppliers bidding for each high-value contract.

There will also be familiar faces: the same procurement professionals on both sides, meeting again and again, and then swapping sides as those with experience of purchasing for public authorities become valuable recruits for the suppliers.

There is, at least in my experience as a former government public procurement lawyer, a problem here.

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But it also can be said that the law of public procurement, like democracy, is the worst system, apart from all the others.

While the law of public procurement is over-prescriptive and uncommercial, a sudden abolition of the law of public procurement would create even more problems.

Without a law of public procurement, there would probably be even fewer tenders.

Settled incumbents would seek extensions and amendments, and officials would nod-along as this would be the path of last resistance.

For all its manifest faults, the law of public procurement does force public authorities to specify and openly advertise its requirements, and it ensures that the risk of a disappointed tenderer challenging a decision means that a process is followed as consistently and transparently as possible.

There is not even any legal requirement on public authorities to go for the lowest price, as it is open to set price against other factors for the most economically advantageous tender (or “MEAT” – yes, public procurement is a MEAT market).

Yes: at the margins, the approach promoted by Dominic Cummings, of appointing brilliant and charismatic project managers to hire and fire suppliers, could achieve some brilliant outcomes.

But for the mundane reality of the thousands of purchases public bodies make each day, there is the case that the law of public procurement ensures a bad situation is not as bad as it could otherwise be.

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So what can be done?

As a former central government public procurement lawyer (and I still practise in the area), there seems to me to two things which could be done to improve public procurement.

One before the public procurement exercise begins, and the other more-or-less comes afterwards.

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Before major procurements, there is a tendency of officials (and politicians) to over-specify and to set “bespoke” specifications (often called, without irony, “solutions”.

For major IT projects, for example, the specifications can seem like a flip chart of the inane “brainstorming” you get at one of those dire team “away days”.

(Shudder.)

The focus, of course, should be on commercially off-the-shelf products where possible, and on systems which have already been tried and tested.

For, believe it or not, public sector bodies are not the only large entities that procure complex works and services.

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And then we come to the contracts – the “terms and conditions”.

(Oh dear.)

Many of the supposed public procurement disasters – from PFI to superfluous aircraft carriers – are not directly down to the process followed but to the contracts signed at the end.

A contract, of course, is a legal instrument that regulates foreseeable risks for parties in a transaction.  

But for many major government suppliers the contract is not used to regulate risk but to eliminate it.

To make sure that the supplier gets the benefit of the contract price regardless of performance.

Hence the penalty payments, early cancellation fees, change control procedures, and so on.

What is distasteful about this is that government suppliers already have the happy benefit of the public bodies being reliable payers.

Public bodies rarely default on contract payments.

But government suppliers, and their lawyers, want more – and go through contracts seeking every possible amendment so as to free the supplier from any risk.

And they often get away with this for two reasons.

First, public bodies sometimes do not have access to experienced and skilled commercial lawyers capable of seeing the implications of often innocent-seeming provisions.

Such contract lawyers tend to work in the private sector.

Second, suppliers use what leverage they have – knowing that certain projects are politically driven and “too big to fail” – so as to insist on contractual protections.

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The law of public contracts and public procurement can be improved – and Cummings and others are right to highlight its many problems.

But more important than wiping away procedures (even if they are far too prescriptive) is more transparency and better legal advice.

This, of course, is anathema, to Cummings, who dislikes both lawyers and freedom of information.

Nonetheless, if public bodies were to publish all public contracts after they were let – and no cynical hiding behind “commercial confidentiality” – then suppliers would be less relaxed about going for one-sided contracts.

As this is about public money, and as suppliers get the benefit of reliable payment, there is no good reason for non-disclosure.

Public bodies should also be stricter as to the burdens that lengthy procurement exercises place on suppliers, so as to avoid SMEs being squeezed out by the conglomerates.

And public bodies should be under a positive obligation to set out publicly the worst case scenarios of contracts (penalty payments, early cancellation fees, change control procedures, and so on) before any contract is signed.

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As the UK leaves the EU, there is a case that the law of public procurement can be reformed.

The crucial principles of equal treatment and transparency need not be threatened by this.

Nonetheless, some public procurement regime will be required if the UK is serious about entering into post-Brexit international trade agreements – as access to lucrative UK public contracts are among the most valuable things the UK can offer in trade negotiations.

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The law of public procurement can be less detailed and prescriptive, as Cummings as others aver.

But this will not solve all the problems.

As I conclude in the FT piece, Cummings has not fully set out the specification of the problem, let alone procured a solution.

**

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The reasons why Remain was defeated – a contemporaneous view

7th January 2020

Historians and others pundits will spend many years discussing and disputing why and how Remain lost.

They will have access to documents and private information not available to onlookers at the moment, and so they may be able to provide better explanations than any of us currently can.

That said, there is a certain value in setting out how things looked at the time, as contemporaries can often be aware of many things that a historian can never recapture.

And so this is a brief post setting out the reasons why Remain lost, as they seemed to an observer at the time.

(I will below use Remain(ers) and Leave(rs) as shorthand, and I hope readers can see beyond the shorthand to the substantive points.  If your only objection to what follows is the shorthand, then this really is not the post for you.)

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To begin with, my view is that Remain lost rather than Leave won.

After over forty years of membership of the EEC/EU, there should have been a more compelling Remain case made at the 2016 referendum.

And even after the narrow referendum result for Leave, the lack of clue of Leavers about what to do next meant Remain still could have secured a further referendum with a Remain option.

But there were (again, it seems to me) three reasons why Remain still failed.

First, Remainers became accustomed to Leave failures – and so became complacent.

There was mistake and mishap after mistake and mishap by the May and Johnson governments.

It often appeared that Brexit would fail all by itself, just because of the accumulation of pratfalls and folly.

There were even three extensions to the planned departure date, and so it appeared that there would always be another extension.

Second, the focus and efforts of Remainers were too often away from the political battle.

There was crowd-funded court case after court case – some worthwhile (for example the Miller cases) and others far less worthwhile.

There was excellent investigatory journalism, exposing the irregularities of the various Leave campaigns, followed by regulatory and police investigations.

There were also marches and petitions and hashtags.

But none of this led to any political breakthrough.

The majority of MPs remained opposed to a further referendum and, in the 2019 general election, little of the Remain passion was converted into concrete political achievement.

Third, at the crucial political moment – just over two months ago, but now an age  away – the Labour and Liberal Democrat parties enabled a general election which neither party turned out to be in a position to exploit.

Neither party were required to consent to this, but they did.

Until mid-November 2019 it was still plausible that a further referendum could be forced, with the prospect of a Remain victory.

The Labour leader even proposed that in return for a being able to head a government there could be a referendum where Remain would be an option.

But the window of opportunity was closed, and then boarded-up.

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It was not inevitable that Remain would lose either the 2016 referendum or the campaign for a further referendum before any departure.

Indeed, the idiocies and antics of Leavers in government provided far more opportunities for Remain than Remainers perhaps deserved.

Yet Remain still lost.

Of course, many Remainers will be quick to blame and accuse others.

And they are right, in that Leavers were and are culpable in many ways.

But both the 2019 general election and the campaign for a further a referendum were there for the taking.

Brexit was not inevitable at any point before the December 2019 general election, and the only reason it is now virtually certain is not because of any genius move by Leavers but because Remain let Leave win.

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A new year and a new parliament: what happens next with Brexit

6th January 2020

A new year – happy or otherwise – does not really mean a fresh start in respect of lingering concerns.

And an emphatic general election result, with a substantial majority, does not mean the inherent problems of Brexit have gone away.

The two inherent problems of Brexit are that a complex and slow task cannot be treated as if it is simple and can be done at speed, and that although there is a mandate for departure there is no consensus on what happens next.

And so as we enter the new year, and as we enter this new parliament, those two issues remain; they have not gone away.

But something has changed.

The UK is now (virtually) certain to leave the EU and that departure is set for the end of this month.

There is now no political or legal way of forcing a further delay, although there is a possibility of a delay for logistical or technical reasons.

It is over.

Remain has lost.

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For what it is worth, I have always professed to be neutral on the ultimate question of Brexit.

This stance has often been derided, or at least doubted, especially when I am pointing out the many mistakes and misconceptions of Brexiters.

And it is correct that I am not neutral on whether Brexit should be botched or not.

The important word for me here is “ultimate’ – what I am getting at is that I do not care about the formal question of UK’s membership of the EU.

I am more interested in the substance of the relationship than its legal form.

And as the examples of Norway, Switzerland, Turkey, Ukraine, Canada, and so on, show, there are a variety of ways a “third country” can have a relationship with the EU.

At one extreme, there could be absolute isolation: a North Korea in the North Sea.

On the other extreme, there could be Brexit in name only, with “EU plus UK” becoming a standard phrase in international affairs, with the UK and EU carrying on much a before with shared institutions, albeit with the UK technically outside the EU.

Either is possible, as are all the positions in between.

But the important thing is that the new relationship should be, if possible, on a sustainable basis.

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The new relationship may need to last longer than the UK’s actual membership of the EU; and it may need to last even longer than that.

Of course, as Remainers become Rejoiners, there is the prospect of a hurried re-entry if the politics of Brexit change.

But this may turn out to be wishful thinking.

And the problem with such wishful thinking is that it could be at the cost of getting a sustainable new long-term relationship.

If Remainers-Rejoiners keep focused on the next heave, others will be going about shaping the long-term relationship.

And in my view, there is something to be said for a close UK-EU relationship with UK technically not a member – and not only in policy terms, but as fulfilling the 52:48 referendum mandate.

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There is a good prospect for such a close relationship – but it is not inevitable.

The desire of Johnson not to extend the transition period means that the UK (once again) will be likely to have to accept what is offered by EU.

There is (probably) not enough time for UK to develop a distinct counter-policy.

The withdrawal agreement provides for joint institutions and decision-making, which could be the embryonic basis of the future relationship. 

Building a sustainable (but close) relationship should now be the priority for those who care about good UK-EU relations.

Instead, of course, many are going to carry on fighting and re-fighting the 2016 referendum, hoping that somehow the result can be reversed.

Perhaps it can be – nothing can be ruled out – but a prudent approach would be to accept the result, and start working on influencing the future relationship.

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Looking at Brexit after the 2019 general election

18th December 2019

Last week the general election returned the Conservatives with a substantial majority.

Until the exit poll was published there were still hopes, based in optimistic readings of some polls, that there would be a hung parliament.

But that turned out to be wishful thinking.

The period of hung parliaments, from 2010 to 2019 (bar two years), is no more.

Things have changed.

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The greatest change is about Brexit.

The time of Remain resistance is over: there is now no viable political (or legal) path to Brexit being blocked.

It is now virtually certain that the United Kingdom will leave the European Union and that, unless something currently unforeseen happens (say, a logistical or administrative problem), that departure will be at the end of next month.

The United Kingdom is now set to leave the European Union by automatic operation of law on 31st January 2020.

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This post sets out some observations and thoughts on the wider significance of the general election result on Brexit – the bad and the good – and it then sets out an important warning about the next stage of the Brexit process.

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One way, perhaps, of seeing the general election result is as the third manifestation of the “will of the people” on Brexit.

The first “will of the people” was, of course, the referendum result of 2016: that, in principle, the United Kingdom was to leave the European Union.

The second “will of the people” was the 2017 general election result: that the exit from the European Union was to be done by the means of a hung parliament, that is by consensus between the main political parties.

And the consequence of this second “will of the people” was to make it difficult, if not impossible, for a “hard” Brexit without any withdrawal agreement.

The current prime minister was in fact only able to obtain a further general election by accepting that departure had to be with a withdrawal agreement.

The third “will of the people” was last week’s general election result: that the government would now have a comfortable majority for the negotiation of the follow-on trade relationship with the European Union.

The United Kingdom and the European Union would then have the confidence that anything agreed would not be frustrated by parliament.

Seen in this three-stage way, you could say that the “will of the people” was the wisdom of the people (echoing the notion of the wisdom of crowds): (1) providing a mandate, (2) tightening the leash, and then (3) loosening it.

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Of course, the three-stage scheme above is an illusion.

It is a neat pattern one can only see with hindsight.

At the time it was far more messy and, of course, general elections are not like referendums and cannot be easily compared.

The current United Kingdom electoral system is not an efficient register of what is the “will of the people”.

For example, looking at numbers, the Conservatives only increased their total vote by only around 300,000 to get their thumping majority; the main shift in terms of absolute votes was the collapse of the Labour vote by 2.6 million, from 12.8 million to 10.2 million.

Some of you will be more interested in clever things like swings, shares and percentages, but I am always interested in the numbers of actual human beings who make the deliberate decision to vote – and on this basis it is difficult to see the 2019 general election as a strong endorsement of anything in particular.

We may no longer have a hung parliament but we still seem to have a hung electorate.

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As many will know (and no doubt some have scrolled down already to start typing this as a comment), total voter numbers matter little with the the First Past The Post electoral system.

To a certain extent (but only a limited one) the FPTP system itself affects voting behaviour: some don’t bother voting in safe seats, and in perceived marginal seats some may vote for parties they would not do otherwise.

And, of course, the FPTP system in effect distorts the result, so that whacking majorities can be based on minority votes.

In respect of Brexit, a plausible case can be made that the majority of those who voted were actually in favour of parties either against Brexit or in favour of a further referendum (Labour, Liberal Democrats, Scottish National Party, Green Party, Plaid Cymru, SDLP), and only the minority (Conservative, Democratic Unionist, Brexit Party, and United Kingdom Independence Party voters) were in favour of Brexit.

Plausible, but inconsequential, in a FPTP system.

The reason, however, why these points need to be emphasised is that, although the political game is now over on resisting Brexit before it happens, the ultimate political issue is still not settled.

There is reluctant resignation as to, but certainly not consensus for, the United Kingdom’s departure from the European Union; and for Brexit to be based on such resignation rather than consensus does not bode well for Brexit in the longer term.

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Another observation is about lies and honesty in political campaigning.

As this blog has averred before, pointing out that politicians lie is not enough if voters do not mind being lied to.

(Yes, it is still important to expose lies as a public good.)

How can this situation change?

There seems two ways: the hard way and the progressive way.

The hard way is there to be some crisis or “crunch” where it becomes of immediate importance to voters that there should be an alignment between what politicians say and reality: that it becomes urgent to voters that politicians tell the truth.

Brexit may well create such a situation, a reckoning, though no sensible person would want this to happen.

Or Brexit may not ever get pushed to such a brink, and that those in favour will still get by with lies to cover every new predicament.

The progressive way is for there to be political (and media) leadership: for those with political (and media) power to make make voters care that they are being lied to.

The current state of the opposition parties in the United Kingdom is not encouraging in this respect.

They sometimes seem to be too busy lying to themselves, and blaming others, to be able to focus on exposing the lies of those who govern us.

The one benefit of the general election result is that it creates an opportunity (though no more than an opportunity) for the opposition parties (at least outside of Scotland) to get their acts together.

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A further observation is that Remain – insofar as it can be said to be a cohesive entity – failed when it mattered.

Both in the period immediately before the general election and in the general election campaign itself, politicians in favour of Remain (or at least a further referendum) could have done things differently, and this may have made a difference to Brexit.

There was a possibility of a “government of national unity” (GNU) but that was unacceptable to the (leaders of the) Labour and Liberal Democrat parties.

There was the possibility of electoral pacts.

Of course, such a GNU and/or pact may have just created new problems, and it may have meant that Brexit was only delayed rather than avoided.

But those roads not taken had at least the possibility of a destination other than departure.

And no doubt the lack of a GNU or a pact will be discussed and disputed for decades to come.

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Brexit, of course, is yet to begin.

All that has happened to date has been a mere prelude to what will follow departure.

The general election result has changed little as to the actual problems of Brexit: the task is still as massive and complex as before, and Brexit should not be done at speed and with shallowness of thought.

The capability of Boris Johnson and Dominic Cummings to win a general election just as they won the referendum does not make their approach to other activities any better or likely to succeed.

And so to the warning I mention above: after departure on 31st January 2020 (or whenever), Article 50 comes to an end.

This means the leisurely, last-minute nature of obtaining extensions will also come to an end.

After departure the key Brexit dates will be as set out in the withdrawal agreement, and these dates cannot be varied quickly or easily.

A decision needs to be made by July 2020 whether to extend the transition period beyond 31 December 2020.

Already the United Kingdom government is displaying the self-limiting bravado that served it so badly in the exit process, and it is now committing itself to no extension (and this will be “enshrined in law”).

This is lapped up by the uncritical press and its readers, but the real problem is that politicians will think they can still get quick fixes at the deadline.

Such extensions are far less possible (perhaps not even possible at all) and shows the usual lack of seriousness.

The transition period should continue as long as it needs to, and should not be artificially curtailed.

Let’s hope we don’t learn this lesson the hard way.

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And now to end this post on some positive notes.

The European Union will be more comfortable negotiating with a government with a working majority and this is a good thing for both sides.

The government majority also perhaps lessens the leverage of the “European Research Group” should the prime minister wish to dump on them as he dumped on the Democratic Unionist Party at the end of the last parliament.

The withdrawal agreement being in place will mean that on citizenship issues, and on many other practical matters, there is legal certainty now in place whatever happens at the end of the transition period.

The transition period means that the United Kingdom remains aligned with European Union law and policy for longer, and so may make rejoining or a close association agreement easier in the medium to long term.

And the government’s wish for a speedy trade agreement means that, as with the exit agreement, it will no doubt be on the European Union’s terms, as the United Kingdom has not given itself enough time to formulate any alternative, and this again makes rejoining or a close association agreement easier in the medium to long term.

These may not be great consolations for those committed to Remain.

But the story of the post-Brexit relationship of the United Kingdom and the European Union has not yet begun, and it is not only down to Brexiters to shape what happens next.

**

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Three things not happening on this election day

12th December 2019

“The hustings are over, the bunting is down, the mad hysteria is at an end. After the chaos of a general election, we can return to normal.”

(Blackadder, third season, episode one)

Many people will be commenting on what is happening today so this post offers commentary on three things which are not happening.

The first thing that is not happening is that we are not considering the currently suppressed report into Russian interference in the politics of the United Kingdom.

One would think that publishing such a report would be a prerequisite of a government seeking to go to the country.

But no.

The second thing that is not happening is that parliament is not scrutinising either the withdrawal agreement implementation bill or the withdrawal agreement which the bill implements.

Neither document has yet had any detailed scrutiny, even though the United Kingdom is set to leave the European Union by automatic operation of law on 31st January 2020, which is just over a month away.

Given that the bill was supported at its second reading by a majority of MPs you would think that the time before 31st January would have been spent ensuring that the 580-page plus withdrawal agreement – that deals with a range of complex and consequential provisions – was properly scrutinised.

But again, no.

The third thing that is not happening is that we are not about to enter the final year of the five-year parliament elected in 2015.

The 2015 general election gave the Conservatives a comfortable majority, which they then converted into four years of political chaos and successive general elections.

The irony is that the Conservatives are promoting themselves today as a solution to the current political disarray, when it was the Conservatives getting their first majority since 1992 which is the direct cause of what is now going on around us.

One would think a sufficient number of voters would realise this and desert the party whose misuse of a majority led to this mess.

But, yet again, no.

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Why those who care for the constitution should oppose the Conservatives at the general election

11th December 2019

If the Conservatives win the general election tomorrow, or continue to govern without an overall majority, then there should be genuine concerns for all who care for the constitution of the United Kingdom.

It was not always like this: for many years the Conservatives were the party of quiet, practical constitutionalism.

The party inspired by Edmund Burke (although himself a Whig); the party of Lord Salisbury and Lord Hailsham and Norman St John Stevas; the party responsible for life peerages, the Police and Criminal Evidence Act (in everyday terms the most important civil liberties legislation ever passed in the United Kingdom), the select committee system.

It is even the Conservative party of all parties that can take the most credit for the European Convention on Human Rights (through David Maxwell-Fyfe) and the Single Market (Lord Cockfield).

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But then something changed.

The change predated the leadership of Boris Johnson and even that of Theresa May.

Under David Cameron and his immediate predecessors, the Conservatives shifted to explicit but hostile ideological positions on constitutional issues complemented by casual disdain.

Cameron, for example, insisted that the United Kingdom should repeal the Human Rights Act as a matter of principle.

When Cameron was faced with a defeat in the House of Lords in respect of a welfare proposal that was then dropped, he threatened to “reform” the upper house.

And when faced with a Speaker of the House of Commons who was not sufficiently obliging to the Conservatives, Cameron and his colleagues sought to get the Speaker replaced.

A pattern began to emerge: strident and populist statements in public and cynical manoeuvring in practice.

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Under Cameron, May and Johnson the Conservatives were not the party any more of Burke, where wise heads would avoid pushing the constitution too far, in case the ship of state capsized.

The combination of Brexit (where the Conservatives persist in pretending that complex problems have easy solutions), the notion that a referendum result trumps parliamentary supremacy, and minority government for all but two years since 2010 have accelerated this anti- constitutionalist trend.

Just to take some examples:

  • Secretaries of State repeatedly misled the House and its committees over the extent and existence of Brexit sector analyses reports;
  • the Conservatives prolonged a parliamentary session over two years, so that there would not be a Queen’s Speech;
  • the Conservatives packed committees with majorities, even though it was a hung parliament, by procedural sleight of hand;
  • the Conservatives repeatedly ignored and did not even participate in votes on opposition motions, and then disregarded the motions passed;
  • the Conservatives sought to make the Article 50 notification without any parliamentary approval whatsoever, and forced litigation to go all the way to the Supreme Court so that parliament could have that approval;
  • the Conservative government became the first administration in parliamentary history to be held to be in contempt of parliament;
  • the Conservatives deliberately broke the pairing convention, in respect of an MP on maternity leave, so that the government could win a vote;
  • the Conservatives government gave serious consideration to blocking a duly passed Bill from obtaining Royal Assent.

There are many more examples one could list.

And all these examples in addition to being the government that sought to impose an unlawful five-week prorogation.

And all that in addition to the current manifesto commitments to limit any checks and balances on the government if elected – the now infamous “page 48“.

So distant has the Conservative party travelled from its Burkean heritage, and so radicalised by Brexit and its experience of minority government, that the party’s approach to constitutionalist issues is indistinguishable from that of any populist nationalist authoritarian party (for more on this see here).

This observation should not be understood to be a partisan point – as set out above the Conservatives had a rich constitutionalist background that can be applauded or at least respected – but the current party are now strangers to that tradition.

The best instance in showing this alienation was the decision of every single Conservative MP to vote for a programme motion providing that the complicated and hugely consequential Brexit withdrawal legislation would have had only a few days to be considered before enactment.

Former Conservative MPs sitting as independents or for other parties voted against it.

But the Conservatives all voted for this complete abdication of their parliamentary responsibilities.

One can point to that vote as the sad moment that showed that the constitutionalist tradition in the Conservative party came to an end.

*

If elected to power, the Conservatives will be emboldened by Page 48 and will continue the trash the conventions and practices of the constitution.

And that is why if the Conservatives win the general election tomorrow, or continue to govern without an overall majority, then there should be genuine concerns for all who care for the constitution of the United Kingdom.

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Will this period of hung parliaments come to an end, or will it become an age of hung parliaments?

10th December 2019

During every general election in the United Kingdom the assumption of many pundits – and indeed voters – is that one party will win outright.

The view is that a party getting an overall majority is the norm to which there is sometimes an exception.

But looking at United Kingdom politics over the last decade, a hung parliament has been the norm, and an overall majority the exception.

Other than the two fateful years 2015-2017 – where a Conservative majority unleashed an In/Out referendum and the current botched Brexit – there has not been a party with a majority since 2010.

Indeed – in the twenty-three years since 1996, when John Major’s Conservative government lost its majority – the Conservatives have only managed an overall majority for those two years 2015-2017.

In two days time we will discover whether this period of hung parliaments has come to an end – or whether it will continue and perhaps become an age of hung parliaments.

The 2017-2019 parliament was one which especially showed the merits (and problems) of a hung parliament – and the current general election is, in effect, a howl of pain by the Conservatives (or its leader) that they could not get their own way.

Today it is difficult but not impossible to see how the Conservatives can gain the seats required for a substantial majority.

But if that happens, and a five-year term is secured, then the last decade will be seen as a blip.

But if there is yet another hung parliament, as in 2010 and 2017, then the 2015-2017 administration will be the blip.

And if hung parliaments become the norm then that will have profound effects on the nature of party politics and the business of governing.

At the moment, both the Conservatives and Labour parties are led by individuals who are are ill-fitted to lead coalitions, and the Liberal Democrats spend a great deal of time trying to explain away or apologise for their role in the 2010-15 coalition.

Like with the pundits and many voters, the view of the parties themselves is also that getting an overall majority is the norm to which there is sometimes an unfortunate exception.

We will find out shortly whether the parties and the pundits and many votes are right.

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The L word, the F word, and contemporary UK politics

9th December 2019

In a few days there will be a general election in the United Kingdom.

This post is not about the possible election result – that is still uncertain and it may even come down to voting intentions which are as yet not settled.

This post is instead about two words that should have had more impact on the campaign, and current politics generally, but have not.

One word begins with L, the other with F.

*

The L word

The first word is “lie”.

Some commentators in the United Kingdom aver that more should be done to confront politicians with their lies.

Peter Oborne, a journalist of immense integrity, has even sought to document and expose each lie of the current prime minister (the estimable website is here).

This is essential work: nothing in this post should be taken to mean that recording each lie is not important.

But it is not enough.

This is because many politicians now do not care about being called a liar, or even be shown to be one.

Such a reaction is a cost of political business for them – and some even relish that they “trigger” such a response as some perverse form of validation.

The ultimate problem is not that many politicians lie.

The ultimate problem is far more worrying and far more difficult to resolve.

The ultimate problem is that many voters want to be lied to.

These voters may pretend otherwise, claiming that they want “honest politicians”.

In reality, such voters just want politicians to say what the voters want to hear.

There is therefore an incentive for politicians to lie.

Until and unless many voters can be made to care about being lied to, every fine and worthy effort in exposing the lies is (at least in the short-term) futile – a public good but not enough to effect immediate change.

There are many political lies: small lies, forgettable lies, lies that take longer to expose than any mortal attention span.

But the biggest lie in the current general election – a lie that may determine the outcome – is “Get Brexit Done”.

Brexit cannot be “done” without years of intense effort and attention.

Entire international relationships have to be rebuilt from scratch; entire areas of law and policy have to be reconstructed; entire social and economic patterns of behaviour have to be re-worked.

And all this in addition to the making of actual decisions about what we want those relationships, laws, policies, and social and economic patterns of behaviour to be.

And all that in turn against the intractable problem of fitting in a Brexit policy within the framework of the relationship between the United Kingdom and Ireland.

Brexit cannot be “got done” by mere exhortation.

It is a lie but a lie many want to believe and cannot be dissuaded from believing by mere arguments, logic or evidence.

And by the time many voters will come to care that they were lied to, Brexit will be too long gone for any voter choice to make much difference.

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The F word

The second word – the F word – I will not type.

It is a word which has lost its traction when it needed to still have traction.

The word describes the 1920s and 1930s manifestation of populist nationalist authoritarianism, a political phenomenon that despite the heady optimism of democratic campaigners has never been too far away.

Complacently, some believed that the thing had gone away with the end of the second world war, or with the transitions to democracy of Spain and Portugal.

The thing, however, is always there.

What happened in the 1920s and 1930s in Germany and Italy and elsewhere was always just one set of manifestations of the thing.

Populist nationalist authoritarianism has more purchase on voters than many conservatives, liberals and socialists realise.

It is the politics of easy answers.

In the United Kingdom there are those in favour of Brexit who routinely trash the (independent) courts, the (independent) civil service and diplomatic service, the universities, the broadcasters, even the supremacy of parliament.

This populist disdain for independent institutions is unhealthy.

The threat of the “will of the people” is used as intimidation.

Coupled with nationalistic rhetoric (on immigration and Brexit generally) and authoritarian hostility to legal checks on government (contempt for human rights), you have all the ingredients of the thing described by the F word.

But if you call this thing by its name, it now has little or no effect.

People will yawn and shrug and pay no real attention.

And because what we have before us is not visually the same as the 1920s and 1930s manifestation of the thing – no uniforms, no goosesteps, and so on – many of those hearing the F word will regard what is now happening as not being an example of the F word at all.

Of course, using the F word is not as important as stopping the thing it describes from taking hold.

 

*

Calling politicians – and pundits – liars, and describing the vile populist nationalist authoritarianism that they promote as the F word, is not going to stop them lying or the thing the F word describes.

The words are not enough, and it may be that new words are needed to make old warnings.

And unless voters can be made to care about being lied to by politicians, or about the implications of the populist nationalist authoritarianism (again) being promoted, then there will be little to stop either the politicians or the F word thing.

Making voters care about any of this is the challenge for liberal and progressive politicians (and pundits) in the United Kingdom and elsewhere.

And the biggest challenge is to make enough voters care in time.

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The government “ruling out” extending the transition period

5th November 2019

Here we go again.

The United Kingdom government has announced that, if the Brexit happens on the basis of the current draft withdrawal agreement, then the transition period will not be extended beyond its current expiry of 31 December 2020.

(By way of background, the “transition period” is, in effect, a standstill period, with the UK still being bound by European Union law but outside the EU.)

Here is a tweet from a political reporter:

And here is a tweet from the current trade secretary:

Where do you begin with this?

*

Let’s start with the current draft withdrawal agreement.

Article 126 provides for a transition period:

“There shall be a transition or implementation period, which shall start on the date of entry into force of this Agreement and end on 31 December 2020.”

Article 132(1) then provides for how that extension can be extended by agreement:

“Notwithstanding Article 126, the Joint Committee may, before 1 July 2020, adopt a single decision extending the transition period for up to one or two years.

(The “Joint Committee” will be the all-powerful, though potentially non-transparent UK-EU entity that supervises the transition period.)

(EDIT – please note that in the first draft agreement’s protocol on Ireland and Northern Ireland, there was also a further provision which provides for one situation when the UK can make a request for an extension – but this provision was removed from the revised version of the draft agreement:

The United Kingdom, having had regard to progress made towards conclusion of the agreement referred to in Articles 1(4) and 2(1) of this Protocol, may at any time before 1 July 2020 request the extension of the transition period referred to in Article 126 of the Withdrawal Agreement. If the United Kingdom makes such a request, the transition period may be extended in accordance with Article 132 of the Withdrawal Agreement.

You can see that this then referred back to two other provisions.

Article 1(4) of that protocol which provided:

The objective of the Withdrawal Agreement is not to establish a permanent relationship between the Union and the United Kingdom. The provisions of this Protocol are therefore intended to apply only temporarily, taking into account the commitments of the Parties set out in Article 2(1). The provisions of this Protocol shall apply unless and until they are superseded, in whole or in part, by a subsequent agreement

And Article 2(1) of that protocol which provided:

The Union and the United Kingdom shall use their best endeavours to conclude, by 31 December 2020, an agreement which supersedes this Protocol in whole or in part.  )

*

In essence, what all that legal prose provides is that there is a transition period to 31 December 2020, that the transition period can be extended by agreement for one or two years the UK has a specific basis for asking for an extension.

The maximum by which the transition period can be extended until is 31 December 2022.

So both the UK and EU, within the draft agreement itself, contemplate potential extensions.

And both the UK and EU contemplate implicitly that this may not be achieved (this can be inferred by the “best endeavours” provision, which presupposes potential failure by only holding the parties to trying for that outcome, not achieving it).

*

There are a couple of crucial legal-procedural points to note.

First, once the UK is out of the EU then Article 50 will cease to apply.

This means that any amendments to the withdrawal agreement will (probably) not be capable of being done with Article 50 as a legal basis.

The draft withdrawal agreement itself at Article 164(5)(d) appears to provide that the Joint Committee cannot amend the withdrawal agreement in respect of several matters, including the length of the transition period.

In other words, the EU may not find it legally easy to agree to amendments to the set transition period(s) once the UK leaves.

There will therefore be, under the current draft agreement, a genuinely hard long-stop date for the transition period of 31 December 2022.

*

Second, the date of 31 December 2020 was in the first published draft agreement (of November 2018).

It has remained unchanged, even though an entire year has passed, eating into that envisaged period.

What was, in November 2018, a generous-ish transition period of nearly two years will, come a departure on 31 January 2020, a far tighter period of just eleven months.

There is no reason to believe that the UK is now in a better position to achieve in eleven months what it expected to achieve in nearly two years.

The EU has its own reasons, tied to the budget cycle and the financial settlement, for sticking to the 31 December 2020 (and 2021 and 2022) dates, but the fact remains: the UK has lost over a year for the transition since the publication of the first full draft.

*

And now we return to the government “ruling out” an extension.

On a legal(istic) point, once the agreement is executed, it may not be legally possible for the government to fetter its own discretion in respect of applying for an extension.

There is an argument that it is bound to keep its right to request an extension under review, regardless of any policy on requesting extension. 

And if the UK faces a “no deal” Brexit on 31 December 2020 then either parliamentary intervention (another Benn Act) or judicial intervention (to oblige the government to consider exercising its discretion) would be virtually certain.

*

But moving on from law and legalism, there is no sensible way the UK government would be able to put in place a full trade agreement in eleven months.

(It has, for example, taken a year for there to be the changes to the Ireland protocol in the current draft.)

There are dozens of areas of trade and policy which will need to be negotiated – to grasp just some of the practical issues which need to be addressed just look at Part Three of the withdrawal agreement.

And those practical issues are in addition to wider agreements on tariffs and other measures.

And any trade agreement, in turn, will need to be ratified by all EU27 states, some including referendums.

All in eleven months?

Getting close to agreement on all these matters by the hard long-stop date of 31 December 2022 is, as they say, ambitious (that is, highly unlikely).

Either the transition period will have to be extended or a “No Deal” Brexit has only been postponed and will now happen on 31 December 2020.

*

So what explains the statements from Number 10 and from the trade secretary that, regardless of any circumstance, the transition period will end on 31 December 2020?

The only possible explanations can be those two enduring features of government Brexit policy: ignorance and dishonesty.

A trade deal cannot be agreed by 31 December 2020, and to contend that it can be either means you do not know what you are talking about or you are knowingly misleading the media and the voters.

Over three years after the referendum, the government still has not learned key lessons of Brexit: of being realistic about what can be done, and about being honest about what is possible.

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The wrong lesson from the 2016 renegotiation

4th November 2019

Before the referendum, there was the renegotiation.

This was the renegotiation that was finalised at the European Council in February 2016.

The deal then agreed in principle between the United Kingdom and the other 27 member states of the European Union may not seem important now.

The deal never had effect, as it was rescinded after the referendum result.

The deal did not even feature much in the referendum campaign.

It now seems almost a footnote.

But looking back, with the benefit of perspective (if not hindsight), the deal is a telling prelude of much of what has followed.

Egged on by think tankers, political advisers and pundits, the then prime minister David Cameron sought, among other things, to obtain an emergency brake on EU migration.

He was warned by wise heads that such a thing could not be agreed short of amending the EU treaties.

And that it certainly could not be agreed at a mere European Council meeting.

So it was not: such an objective was impossible, and Cameron failed.

All that could be changed in respect of migration was some minor tinkering with indexation and entitlement to benefits.

Even Cameron, in his recently published memoirs, admits to mistakes about the renegotiation, including the framing of domestic expectations.

And he indeed misled his political and media supporters in what could have been plausibly agreed at that Council meeting.

Demanding things from the EU is easy, getting agreement from the EU is not easy.

Unfortunately, many Brexiters seem to have taken a different message from Cameron’s failure.

Cameron, they aver, did not try hard enough, he was too soft.

In essence, say the Brexiters, he should been louder in insisting on what was described as impossible: it was a failure of political will.

This lack of realism has been carried forward to the current Brexit negotiations.

This is why, when the pushes did not even get to be shoves, the pro-Brexit government has had to accept a withdrawal agreement on terms that suit the EU.

The EU is a creature of law that takes the single market seriously.

And this is why the same problem will arise with any future trade agreement.

Demanding something that cannot be done does not work, even if it is shouted slowly in English.

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