25th March 2021
One of the marvels of modern story telling is, of course, Bagpuss.
And one of the most instructive stories of Bagpuss is The Mouse Mill, where the mice devise and construct a mill for the provision of chocolate biscuits.
[Spoiler warning for episode eight of Bagpuss.]
The mice, however, are not making the chocolate biscuits out of butterbeans and breadcrumbs as they aver.
They are instead simply recycling chocolate biscuits, thereby controlling both ends of a supply chain.
Until now, the mice’s chocolate biscuit factory was perhaps the most ingenious method yet conceived of having it both ways in the provision of a good or a service.
But now we have the Deloitte contract for track-and-trace, where they appear to be able to answer parliamentary questions and freedom of information requests about their very own services.
Over at the Huffington Post, the experienced and well-regarded political journalist Paul Waugh has disclosed that Deloitte are drafting the answers to parliamentary questions in respect of matters for which Deloitte are providing the government with services.
I have not seen the contracts, but on the safe assumption that Waugh is a reliable news source, we can trust the following report (emphasis added):
‘Four different contracts show that Test and Trace has been using Deloitte for “general management consultancy services” ranging from building testing capacity to stockpiling and logistics oversight.
‘But buried within the contracts are details of help provided with PR and communications, with a requirement to “draft and respond to parliamentary questions, Freedom of Information requests, media queries and other reactive requests” and to “support lines to take and Q&A’s in anticipation of queries”.’
You do not need to have suffered years of experience with government contracts to know that legalese here quoted by Waugh rings true.
It is certainly not the sort of wording anyone would invent – and so it is no doubt the case that this is an actual contractual provision.
And the legalese is precise – crucially the contractual wording is not about simply providing the information that would allow the civil servants to draft and respond to parliamentary questions and freedom of information requests.
Had that been the purpose and intention of that contractual provision, then that is what the provision would have said.
Instead the parties chose to use wording where the external provider is obliged to draft and respond – and not the civil servants.
As you will see, this detail matters when we come to the government’s rejoinder.
As Gemma Abbott, legal director of the Good Law Project, is quoted as saying:
‘We have a government so addicted to outsourcing that it has even outsourced being held to account.
‘If a member of the public submits an FOI request, or an MP asks a parliamentary question about the government spending millions on contracts with Deloitte, it seems that it’s Deloitte at the other end marking its own homework – it is beyond parody.’
Her point is well made.
‘…the mice put breadcrumbs and butterbeans in the top, and they work the mill, and out come the chocolate biscuits…’
‘Impossible, impossible, it isn’t true. I am going round the back to what is happening’
– Professor Yaffle
There is, of course, nothing wrong with any consultancy firm providing services to the government – and, indeed, there is an advantage to certain tasks being allocated to external professional advisers and service providers.
But there are certain tasks which should not be contracted-out and outsourced.
The problem here is not with Deloitte offering to provide the service of providing answers to parliamentary questions and freedom of information requests – for they are a provider of services – but the agreement of the government that this job be undertaken by external providers.
The real culpability lies with the government.
The effect of the transaction is that a service provider will be responsible for providing “draft[s] and respon[ses] to parliamentary questions, Freedom of Information requests, media queries and other reactive requests” about their very own services.
This cannot be right in principle.
At the end of the Huffington Post story there is a rejoinder from the government:
‘The government employs contractors in the same vein that private businesses do and responsibility for answering parliamentary questions, freedom of information requests and media enquiries rests firmly with a team of civil service communications professionals within the Department of Health and Social Care. Every single response is subject to the highest levels of scrutiny to ensure they are both factual and detailed.’
If this was the case, then it is difficult (if not impossible) to explain the legalese quoted in the news report.
Either the contractual wording sets out the true intention of the government or that press statement does – both cannot be (equally) true.
And if the government’s rejoinder is true, then the legal drafting quoted in the news report would (and could) have been different.
Why does this matter?
The constitutional significance of this is set out well in a thread by Alex Thomas of the Institute of Government:
Argh – this is really not good. Consultants cannot be the ones writing PQ answers for ministers. That’s the job of a civil service paid for by the taxpayer— Alex Thomas (@AlexGAThomas) March 24, 2021
Consultants Deloitte paid to draft ministers' parliamentary answers on Test and Trace https://t.co/kzQEXhR2g8
When consultancy reaches so deeply into the state (often legitimately – to buy capacity, let’s not overreact)… and assuming this is correct… were consultants answering the PQs etc because the CS didn’t have time to… or because the civil servants didn’t know the answers?— Alex Thomas (@AlexGAThomas) March 24, 2021
So the contractual provisions – and presumably the services performed thereunder – are an assault on the norms of the civil service.
Another assault, to go with all the others.
This one, however, does not seem especially directed or deliberate – just a shrug and a signing of some contracts.
We do not even get the glamour of a chocolate factory, or the elusive near-satisfaction of chocolate biscuits being procured only to then be taken away.
The government should not sign any further contracts with the wording of this clause.
There should, of course, be a contractual obligation on service providers to assist the government in respect of freedom of information requests and parliamentary questions and to provide necessary information.
But contracting to provide the service of ‘drafting and responding’ is a significant step too far.
Having control of both ends of the line of accountability is inappropriate – a service provider to the government should not be ‘drafting and responding’ to queries about that service.
One should not be able to both have a chocolate biscuit and to eat it.
Declaration: I was a central government lawyer 2003-2005 dealing with freedom of information requests on central government commercial matters.
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