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.]
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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.
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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”.’
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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.
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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.
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‘…the mice put breadcrumbs and butterbeans in the top, and they work the mill, and out come the chocolate biscuits…’
– Bagpuss
‘Impossible, impossible, it isn’t true. I am going round the back to what is happening’
– Professor Yaffle
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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.
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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.
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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
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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.
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Declaration: I was a central government lawyer 2003-2005 dealing with freedom of information requests on central government commercial matters.
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Test and Trace contracts are held with the likes of Serco, Sitel and Capita. Not Deloitte as far as I’m aware. So marking their own homework may not be strictly true.
Consultants provide advice on all sorts of matters including PR. Is providing answers to questions such a large step? Consultants work on policy and do so in co-operation with civil servants, though the link may not be that close as the consultants are there to provide the expertise. The departmental response claims that the civil servants in the department are involved
‘Every single response is subject to the highest levels of scrutiny to ensure they are both factual and detailed.’
Of course one may never know.
If this is such a radical step, I don’t quite see it.
“Test and Trace contracts are held with the likes of Serco, Sitel and Capita. Not Deloitte as far as I’m aware. So marking their own homework may not be strictly true.”
– The fact set out in the Waugh piece, contradicts you. And this blog does not post (knowingly) ‘untrue’ things, strictly or otherwise!
“Consultants provide advice on all sorts of matters including PR. Is providing answers to questions such a large step? Consultants work on policy and do so in co-operation with civil servants, though the link may not be that close as the consultants are there to provide the expertise. The departmental response claims that the civil servants in the department are involved ‘Every single response is subject to the highest levels of scrutiny to ensure they are both factual and detailed.’”
– The contract explicitly says ‘drafting and responding’ – this is a step beyond what you say here, and so this sadly does not work as a defence
“If this is such a radical step, I don’t quite see it.”
– It is a radical step – in that it gets to root of things – for a private contractor to fulfil the constitutional role of a minister. If you cannot ‘quite see’ this provision as a radical step, then you would also would not ‘quite see’ the difference between a minister and an external service provider – and I am sure that would not be correct!
Thank you for your response.
Waugh writes
‘Critics claimed that Deloitte could be “marking its own homework” when MPs asked questions about Test and Trace’. That was the point I was making.
Drafting and responding was a general requirement from my experience working in a local authority where consultants advise on more technical matters.
Well I wonder if one part of Deloitte drafted the contract for another part of Deloitte.?
The only part of this sorry and rather sordid mess that I liked was the Bagpuss film (having been raised in benighted lands that didn’t have such televisual feasts). Good to have a new source of metaphors for the practice of modern government to add to Lewis Carrol.
A natural extension of “support lines to take and Q&A’s in anticipation of queries” is surely to ask the questions too. Then parliamentary back-benchers can be relieved of the burden of asking suitably sycophantic questions, and Deloitte can “honestly” report that high in the list of FAQs was “Following the popular success of the Test & Trace programme, is the Minister expecting to provide the grateful nation with further benefits by pursuing this beneficial partnership with proudly British Industry?”
Yet again something delegated to the unelected. I thought that people felt strongly about not being dictated by unelected bureaucrats, but it seems that being dictated to by unelected private sector employees is just fine.
<blockquote<Yet again something delegated to the unelected.
Not really, Margaret.
In these circumstances, consultants working under contract to a government department are to all intents and purposes, staff of the department as far as their role in dealing with FoI requests is concerned: they are, it would be argued, working under the control and instruction of the department (whether that’s true in practical terms is another matter) and so are simply acting as the department has instructed them to act, just like any Civil Servant on the department’s books.
I think the point is that contractors aren’t ‘for *all* intents and purposes staff of the department’.
I would be very surprised if there were clauses in their contract that bound contractors to abide by the Civil Service Code of Conduct, for example.
You could probably say that, in the chain of the command a contractor would ultimately be working at the direction of someone who *is* bound by the code, so it all balances out in the end. But this does seem like a real and material difference to me at least.
Ultimately, a conctractor is employed to perform a task, and competion of that task is their main priority (although, even that could be disputed). But a core ideal of the civil service is that they have to consider wider the wider public interest in their work.
I would imagine a contractor to be motivated simply to defend and promote the policy they’re working on, but would expect a civil servant to give a more rounded view.
Some suggestions for additional PQs for Deloitte to answer:
* How many answers to PQs has Deloitte drafted in the last year? Or in each of the previous four years?
* How many PQs are drafted for the department by other private sector organisations? Which organisations?
* If each answer is subjected to the “highest levels of scrutiny” – who conducts that review? Does that mean each one is reviewed and approved by a minister and/or a permanent secretary? Or are there more junior people who approve the answers?
* How many of the answers prepared by Deloitte have been amended or corrected as part of this “scrutiny”? Or are they just rubber stamped?
* How much has it cost for Deloitte to prepare each PQ answer? And what is the typical cost of a civil servant answer a PQ?
*Does that mean each one is reviewed and approved by a Minister…*
In the central Government department I work for yes, each PQ answer is approved by a Minister before it can be published. Before that there is a clearance process which involves the Senior Civil Service.
I’d be interested in what the typical cost of answering a PQ might be, some take a lot of work, others much less. Interestingly I understand there is a provision to refuse to answer on the basis of disproportionate cost, much like the section 12 exemption under the Freedom of Information Act. Unlike FoIA, I have never in a decade of experience seen this exemption used for PQs, despite some being very complex to answer fully.
Every day, there is another example of the government letting us down, shirking truth and responsibility, and enriching its friends.
Once the norms of self-restraint are removed, there are few other restraints or incentives to force better behaviour.
And, if the PM’s performance at PM”s and infront of the Liaison Committee yesterday is anything to go by, the government will just brazen out any criticism.
Pity Professor Yaffle, the public intellectual trying to dispel the fog of misinformation. Oliver Postgate said that Yaffle was based partly on his uncle, the political philosopher G D H Cole, and partly on Bertrand Russell, who was a Postgate family friend. The mice seem to be complicit in their own delusion, both perpetrators and dupes, and of course it’s all a bit of a joke – a startling metaphor for Johnsonian populism.
I worked in policy for years, frequently drafting responses to PQs, briefing, ministerial correspondence etc. Where the question related to operational issues you would ask the operational head for a response to the question but you didn’t just accept the answer without challenging it. On stats type questions you could spend hours delving into spreadsheets, getting them reworked, usually working with analysts (whose work is ultimately overseen by the ONS).
On occasion the operations people were shy of disclosing information because something was wrong. My job was to find out exactly what was going on, and then work out how to manage it. If something had gone wrong you had to be honest about it. And with the operations people, and anyone else appropriate to the issue – lawyers, analysts, other policy colleagues, senior officials – do something about it.
I don’t see consultants can deliver that level of challenge or scrutiny. Why would they, their priority is to protect their organisation, they’ll be wanting to move on to other jobs within the organisation.
The key question is Andrew’s above, who in the CS conducts the review, and at what level of detail. If they’re not getting their hands dirty, if govt analysts aren’t involved, then any answers are next to worthless.
Well said.
Is anyone in government actually managing this contract? And how do we know the same is not happening on other contracts?
It’s our money and we don’t even get any chocolate biscuits.
What strikes me is that I know from first-hand experience (my expertise was in Data Protection, but there was frequent overlap with FoI) how risk-averse Central Government Departments are when it comes to FoI responses.
Almost without exception, departments run a centralised “clearing house” for any but the most banal and uncontroversial FoI responses, to ensure that whatever goes out is “on message” and unlikely to embarrass senior officials or ministers.
This arrangement seems to run entirely counter to that norm, and I for one can’t wait to see it blow up in the faces of those concerned – which I’m convinced it will…
Taken literally, a duty not just to draft the responses, but to “draft…parliamentary questions”. There’s the circular biscuit economy for you.
I’d question DHSC’s rejoinder: “…responsibility for answering parliamentary questions…rests firmly with a team of civil service communications professionals…”. Ministerial responsibility, RIP?
Still, perhaps Deloitte will do a better job.