27th September 2021
Once upon a time it would be sensational news that the army was to be called in and that laws were to be suspended.
It would indicate, perhaps, something about either a failed state or an unforeseen emergency, or both.
As it is, the news seems almost commonplace – and that it would be more exceptional nowadays for the news to be less sensational.
The laws that are to be suspended are competition laws – which (we are told) would otherwise prevent petrol companies from coordinating with each other.
Government to suspend competition law to get petrol to forecourtshttps://t.co/bvWNjwXR4D
— BBC Politics (@BBCPolitics) September 26, 2021
I am not an energy law specialist – though I know a little about competition law – and it would be interesting to know exactly how current competition laws would prevent coordination in the current situation.
This law-suspension exercise has the grand name of ‘activating the Downstream Oil Protocol’.
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‘Dispatch War Rocket Ajax.’
Flash Gordon screenplay, 1980
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Tonight I activated the Downstream Oil Protocol which temporarily exempts the fuel industry from competition laws so we can optimise supply
It’ll now be easier for companies to share information and prioritise the delivery of fuel to areas most in needhttps://t.co/w3zV4CGpLC
— Kwasi Kwarteng (@KwasiKwarteng) September 26, 2021
And the official statement is here, and it includes this:
‘Known as The Downstream Oil Protocol, this step will allow Government to work constructively with fuel producers, suppliers, hauliers and retailers to ensure that disruption is minimised as far as possible.
‘The measure will make it easier for industry to share information, so that they can more easily prioritise the delivery of fuel to the parts of the country and strategic locations that are most in need.’
As competition law in this respect is about preventing what would otherwise be cartel behaviour, then it would appear that the fuel industry want to (or need to) do something between themselves that would otherwise carry potential legal risk as cartel behaviour.
Perhaps more will be come clear on this as the protocol is activated, though it seems such relaxations of competition law have been done before in other recent emergencies:
This ⬇️ likely to be via a Statutory Instrument (SI) under 1998 Competition Act. During #Covid gov has already made such SIs – temporarily – for firms in indep healthcare, dairy & groceries (twice). They are 'made negative' SIs: don't need Parl to OK them or be sitting #SIWatch https://t.co/RcONvBn6y3
— Brigid Fowler (@Brigid_Fowler) September 26, 2021
If this is what is being done, we should note that the relaxations – or suspensions -of law do not have any real parliamentary oversight or control.
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And now the army.
(Source)
But as this news report explains:
“It is understood that it would take up to three weeks to fully implement, because some of those mobilised may already be on other deployments and others could be reservists.’
And so, by the time the army arrives, it may be too late – and it certainly is not something that is intended to happen in the next few days.
This manoeuvre is known, it seems as activating ‘Operation Escalin’.
*
‘Dispatch War Rocket Ajax.’
Flash Gordon screenplay, 1980
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Just as constitutional law should be dull and it is not a good sign when constitutional law is exciting, the same can be said for the law of civil contingencies.
It is not normal for laws to be suspended and for the army to be used for civil matters – and it should never become normal.
But.
The various problems facing the United Kingdom mean that what are civil contingencies are becoming civil necessities.
Brace brace.
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In my experience, calling out the military is often a sign that there’s an impending election. Or has Labour’s party conference been getting too much coverage?
Hot Hail indeed.
“I am not an energy law specialist – though I know a little about competition law – and it would be interesting to know exactly how current competition laws would prevent coordination in the current situation.”
I am neither an expert in energy nor competition law. However, I would surmise that it is possible that two rival firms agreeing where to send supplies in order to maximise the sale of their goods, particularly in a market in which they are the retailer and there is no price control mechanism other than competition between retailers, would be seen as unlawful collusion. In normal circumstances, sending supplies only where you have no competition, would push prices up to the detriment of the consumer.
This is an irreversible step in my opinion. It will be difficult to prevent oil companies from colluding after this even once the law has been retracted.
Would this not depend on how the SI is worded? Specifically, if it makes an express mention of ‘exceptional circumstances’ and gives an end date for suspending competition law?
Of course, if it’s open-ended or extended ad infinitum, then all bets are off.
Here are some examples of earlier measures disapplying aspects of competition law in a similar vein:
The Competition Act 1998 (Groceries) (Coronavirus) (Public Policy Exclusion) Order 2020 was made on 27th March 2020, when the Secretary of State was “satisfied that there are exceptional and compelling reasons of public policy why the prohibition contained in Chapter I of the Competition Act 1998 ought not to apply” in qualifying activities between groceries-chain suppliers. That was open-ended, by revoked on 8th October 2020.
* https://www.legislation.gov.uk/uksi/2020/369/made
* https://www.legislation.gov.uk/uksi/2020/933/made
Whereas similar regulations for dairy produce suppliers came into force on 1st May 2020 but expired automatically after three months: https://www.legislation.gov.uk/uksi/2020/481/made
A few similar orders have been made over the years, often in relation to defence matters, e.g.:
* surface warship maintenance – https://www.legislation.gov.uk/uksi/2006/605/made
* complex weapons -https://www.legislation.gov.uk/uksi/2007/1896/made
* nuclear submarines – https://www.legislation.gov.uk/uksi/2008/1820/made
Presciently, it turns out that there is already an SI in place from 2012 to disapply aspects of the Competition Act 1998 to a “Qualifying Protocol” in the event of fuel supply disruption –
https://www.legislation.gov.uk/uksi/2012/710/made This seems to have remained in place from the https://en.wikipedia.org/wiki/2012_United_Kingdom_fuel_crisis – so perhaps this measure just needs to be, ahem, activated.
It seems Norman Lamb needed to say that there were “exceptional and compelling reasons of public policy” to put the 2012 Order in place, but subsequently no such requirement explicitly on any “Qualifying Protocol” that Kwasi Kwarteng might agree now with a Protocol Party, but there is a need for “a significant disruption or a threat of significant disruption to the normal supply of fuel”.
Perhaps I missed someone setting out an clear explanation in the last few days, but the explanatory note from 2012 does a decent job:
https://www.legislation.gov.uk/uksi/2012/710/pdfs/uksiem_20120710_en.pdf
“7.4 The Government has developed a voluntary Protocol Agreement with Industry Associations and companies in the UK downstream oil sector the purpose of which, when activated, is to improve the distribution of oil fuels during a disruption. The Protocol enables the sharing of accurate information between the industry parties relating to any disruption of operations, availability of fuel stocks and fuel tanker movements. It also enables joint planning and coordinated supply action between the parties by sharing and redeploying assets.
7.6 The activation of the Protocol would be a more measured mechanism than the Government resorting to taking emergency powers, which would lead to a substantially greater level of intervention in the downstream oil market. The Protocol is an emergency response measure and is not a substitute for emergency powers because the industry parties would be invited to undertake various activities to mitigate the impacts of a fuel disruption on a voluntary basis, rather than through a statutory direction by the Government. ”
Isn’t this the sort of thing we want to see? Government planning for a risk and putting in place contingency plans, rather than making it up on the hoof.
so a industry not able to cope with the circumstances is expected to solve its problems what ever the cause maybe, by talking with each other. good luck and lets hope the only reason for the problems are selfish remoaners and the media because if not, a bicycle could be usefull in the near future for anybody who has to travel to work.
I am wary of advertising my blog on the posts of other bloggers, but in the context of the deployment of the army in this Government made crisis, I feel my blog, a work in progress and drawn up with input from folk who have worked in the haulage industry and others who still do, may prove of interest.
The peer reviews, if I may call them that, have been very kind.
I, myself, have something of a background in recruitment and training as a result of my time as a civil servant.
Only a handful those commenting on my blog post on Twitter, mostly Leave voters as it happens, have had apoplexy. The truth being rather indigestible and yet Brexit, although arguably the most significant factor, is not the only one.
The fundamental issue is that we have an ageing UK population with an ageing, shrinking domestic work force and, just as importantly, business owning class.
Freedom of Movement mostly defused the UK’s demographic time bomb.
Johnson’s Hard Brexit, endorsed by Labour, armed and exploded it.
You cannot train up, say, a UK based HGV driver workforce in the longer term (in competition, by the way, with every other sector of the UK economy facing growing labour and skill shortages) when the people you want to train up in the UK were not born in UK 20, 30, 40 … years ago.
“Ye cannae change the laws of demographics, Captain!”
https://jodatu.wordpress.com/2021/08/28/just-a-bit-of-fun-just-a-bit-of-fun-as-peter-snow-used-to-say-on-election-night-specials-on-the-bbc-but-seriously-the-hgv-driver-shortage/
And the interesting thing is that it is the generation that is in most need of freedom of movement that voted for Brexit. [Not all, I hasten to add!]
I am occasionally staggered by the inability of some to understand the consequences of their actions and how those actions can actually harm themselves. I hadn’t understood what a nation of masochists we are. It’s a brutal way to find this out.
At this point, it feels like our government is flying blind on a rocket cycle.
I’m guessing, but the number of available army lorry drivers would consist of regular army drivers and reservists. I doubt that the army has a significant number of regular drivers sitting around with nothing better to do.
Reservists are quite possibly lorry drivers in civilian life. Calling up a reservist lorry driver just changes the driver’s uniform and doesn’t add to the number of available drivers.
Yep, this proved to be the case when bringing in the troops was posited as a solution to the previous HGV driver shortfall problem:
https://www.thenational.scot/news/19503826.army-wont-scratch-surface-hgv-driver-crisis-haulage-head-says/
2,000 HGV driving Squaddies vs. 100,000 HGV driver shortfall – you’d think that even the oafs in Government would see the problem with that “solution”…
Calling in the army seems to me like a classic case of politicians feeling they need to be seen to be doing something. By the time the army is mobilised, which isn’t quick if they haven’t already been preparing for it, we will already have reached the stage where pretty much everyone has a full tank of petrol, after which demand can’t realistically stay at current levels. The longer-term problem is that we’ve discovered the supply chain is fragile, so more panics may arise in future if the current shortage of drivers continues. Given that HGV driving isn’t a particularly attractive profession, and younger people are to an extent put off taking it up by the worry that driverless vehicles will make them redundant in 10-20 years, we really do need those foreign drivers. The big question is whether they’ll be interested in coming back, once we eventually realise we need to offer more than 3-month visas.
I imagine it plays well with the kind of jingoistic pro-Brexit xenophobe that still thinks we’re single-handedly fighting WWII, though.
Looks like the armed forces are morphing into a general purpose workforce for sorting out the government’s cock-ups.
As has been suggested above, many squaddies get their HGV driving licence whilst in the Army and, when they leave, get a HGV driving job. The drivers on local hire companies, slaughterers, etc. are often ex-servicemen.
So the Government’s measure may be merely moving the deckchairs.
Interestingly (at least to me) the devolved Governments (but not, so far, the English Government) have declined to reduce or abolish agricultural support for the next couple of years, until more is known about the long term effects.
The average age of UK farmers is 59 (many are much, much older) and they are ill-placed to fulfill the Brexiter ideal of being galvanised into Stakhanovite efforts of food production in the absence of support.
I’m off for a lie-down now…
I can do no better than post an extract from the UK Government’s 2018 response to consultation on fuel resilience – https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/700357/FINAL_-_Government_response_-_downstream_oil_supply_resilience_consultation.pdf
1.6. DECC (now BEIS) undertook an internal research project in 2014-15, which examined
evidence of GB fuel supply system resilience. The research findings took account of
information supplied by many fuel companies.
1.7. The findings of the research project were:
• There are a number of major GB infrastructure sites which are essential to
regional fuel supply because other local infrastructure is too small to replace
them if they cease supply (also referred to as ‘single points of failure’).
• Supply chains are very dynamic and can adjust to disruption at these sites
over weeks but not immediately.
• The key constraint is finite logistical capability of pipelines and tankers within
the country to distribute fuel to retail sites – not a national lack of access to
fuel from UK refineries or imports.
• A sudden failure at the identified essential sites could not be compensated for
immediately and fuel shortages could occur within days.
• There is a market failure in that, while individual suppliers invest in the
resilience of their own supply chain, there is neither a mechanism for them to
share the costs of system resilience as a whole.
And yet many of those fundamentally responsible for this latest debacle (and the rest) will still tell you that we have to “let the market decide”; and that “Small Government is Good Government”.
Neither of which ideologies have a snowball’s chance in Hell of fixing this.
If it had been left to the market, the problem would not have developed as there have been warnings of impending driver shortages for some time. The market solution is to raise wages and improve working conditions, thereby attracting more people into the profession. This would have happened gradually, with only hauliers noticing difficulties. However, Brexit suddenly cut off the supply of potential drivers from the EU, and the covid shutdown of driving tests in the UK cut off the potential supply from the UK. Both of these are interferences in the market which prevent it from adapting. It could still fix the problem, but by raising wages to very high rates, which would do two things: attract people who are already qualified but not currently driving (e.g. retired or doing something they prefer), and make deliveries so expensive that it’s no longer economical to distribute those products, thereby cutting demand for drivers to the available supply.
Of course these consequences are very severe, and since they are foreseeable, they should be avoided by non-market means – but that needs sensible actions by government.
Sure it would – that’s part of my point: “the market” has been in full effect before and during the development of this mess, and couldn’t or wouldn’t to anything about it.
Cross-delivery of fuel by the majors to each others’ petrol stations, and from each others refineries, using each others transport, is a deeply embedded feature of fuel distribution in this country. It can be arranged by contract without competition law problems. The efficiency of logistics in Britain is world-class, one of the reasons we really are a champion nation of grocers.
So the present competition laws have not impeded oil companies from distributing fuel efficiently. There is no great logistics efficiency lost to the restrictions of competition law.
Competition law can slow an efficient reaction to the kind of crisis when some fuel source, eg some refinery, some pipeline, is down or difficult of access (eg, picketed). That’s when rapid reaction to the situation might require the kind of central planning that competition law might impede. Without that, large parts of the country normally supplied from that source, might lack fuel. That’s the kind of situation the extract you have copied out describes.
But the present situation – a general shortage of drivers affecting all logistics sectors the same – is not such a situation. I do not really see what a temporary waiver of competition law achieves in this situation.
It looks to me that the government had an emergency power available to deal with a fuel distribution crisis, and so pressed the button to apply it, even though the power wasn’t so relevant to the present kind of crisis. I suppose at the least they can’t be accused of failing to do what they had the power to do. Not falling into the trap of Mr Raab’s unmade phonecall which probably would have made no difference.
Operation “Escalin”?
I thought “escalin” might be a made up word – the OED does not have it, only “aesculin” (a compound found in the bark of some trees, including the horse chestnut, used to detect bacteria by fluorescence). There is also “escaline” (similar to “mescaline”, derived from the agave or mescal, both psychedelic drugs) .
But “escalin” seems to be an obscure coin. e.g. https://en.numista.com/catalogue/pieces28161.html
What too many people don’t seem to appreciate is that to be a fascist you don’t need to have a party membership card in your wallet – although many do, perhaps of a party hiding behind another name…
Because fascism is not solely a political party (or movement), it’s a way to be in the world, a vision of the world, a Weltanschauung, based on the power of census, of money, of privilege – and the others, the underdogs, specially those without a clear class conscience that think the underdog is someone else.(When they come to terms with the bitter truth, then you have social unrest).
Propaganda manipulates human beings; and when it shouts an inconsistent appeal to «Freedom! Freedom!», it effectively produces a population, an electorate, that cannot distinguish between the word and its meaning, a population that can be easily conned into asking the «freedom» of Brexit, as a current example. Falsehood has become undistinguishable from truth.
The lack of a credible opposition is a great bonus. The Mussolini March on Rome of October 1922 was possible (and successful) because of an ineffective opposition and of a weak, cowardly, monarchy.
Suspending laws and calling in the army are further steps in that direction. More, and with more perverse consequences, will follow.
But those that have read or studied the phenomenology of fascism (authors of the caliber of Theodor Adorno, Max Horkheimer, Silvio Spaventa, Umberto Eco, etc. have filled thousands of pages on the subject) have learnt how the mechanisms of persuasion work. They are somehow vaccinated.
Might be the time to suspend the law which prevents the Cabinet from sharing information.
And which law is that, John?
I have a long background in – among other things – facilitating inter-departmental information sharing (including the Cabinet Office), and I can’t think of anything in the current situation made worse by a supposed legal prohibition on the exchange of information.
(With apologies if you’re being justifiably facetious about the “batten down the hatches, say nowt and pretend it’s all fine…” style of current Cabinet business conduct.)
Something that I genuinely do not understand is that on the one hand, you have a government that is telling everybody that there are not shortages; essentially that there is no emergency, just a spike in demand with the supply side unable to increase deliveries to match that demand.
On the other hand you have that same government suspending laws. Laws that were passed by parliament. Not only do they suspend a law, they do so with no discussion whatsoever, without involving the constitutional organ that passed that law in the first place.
Now, if this is not an emergency, then why is the government akting this way? Why is it taking emergency measures despite there not being an emergency, why is the government that ‘took back control’ running roughsod over the very institutional organ that they said should be the sole arbitor of laws in the UK?
Addendum: If this government suspends this law without an emergency, without public debate even, what other laws will they suspend without further explanation?
I really wished I could correct those typos :(
Because it’s a govt elected on and shaped by dishonesty in its very DNA. It’s a narcissistic delusion in Cabinet form; it cannot possibly admit to weakness, failing or the need for meaningful consultation, collaboration or permission.
To me, it also demonstrates that UkK residents lack skills. Nice future you got.
andrej, ljubljana