Author: David Allen Green

The fantasy of the Brexit “ring of power”

21st October 2022

Imagine, if you will, a Brexit “ring of power” – as magical and metallic a prop as you would find in any work of high fantasy.

This ring, however, has two qualities.

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First, the size of this ring is diminishing slowly over time.

In December 2019 its size could be measured as a majority of 81 parliamentary seats.

Now, in October 2022, its size can be measured as 71 seats.

And with by-elections and defections, its size will go down and down.

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Second, the shininess of this ring also is diminishing over time.

In December 2019 it was bright and glimmering.

But now it is somewhat faded and – by January 2025 – there will be no shininess left at all.

The shininess is time-limited.

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Yet, for both these qualities, it is still a ring worth seizing – or so its pursuers think.

For a parliamentary majority is worth having, especially for the Conservative party, as they are not that common.

After 1992, the Conservatives had to wait until 2015 before they had an overall majority, and they promptly lost that in 2017.

In 2019, they managed another overall majority against weak opposition and with the promise of “getting Brexit done”.

But this may now be the last Conservative overall majority for a political generation, if not for all time.

One can understand why so many Conservative politicians want to wear the ring and wield its supposed power before January 2025.

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The problem for those seeking to wear this ring and wield its supposed power is that the ring was itself wrought out of a deeper fantasy.

This were the fantastic notions that, first, the prospect of Brexit could be easily avoided with a mere referendum – and that, second, Brexit would be easy and inconsequential.

In 2015 the Conservatives avoided splitting the vote with Ukip with the promise of a referendum.

Then the Conservative government under Cameron nonchalantly assumed the referendum would be an easy win, and so they lost.

In 2019 the Conservatives promised that getting Brexit done would be easy, but it has not been.

Instead the clouds and forces of reality, as manifested in market forces and otherwise, batter and bruise the United Kingdom.

We have sluggish-to-no growth and have willingly cut ourselves off from the huge single market of our neighbours – a single market we helped fashion to our advantage in the 1980s.

We are getting relatively ever-poorer.

And there is nothing which any government can really do about it while we remain cut off from the huge single market of our neighbours.

All politicians can do is incant the same old lie about “taking back control” as the United Kingdom is increasingly at the mercy of global forces.

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No politician who puts on the ring is going to do well: there are just different forms of failure, different ways to implode, different reasons to resign or be sacked.

One national step forward, of course, would be to suddenly trash the ring of power, and to have a fresh general election.

To rid ourselves of the allure of this cursed artefact.

But there is no reason to believe that those craving the ring of power would voluntarily agree to lose the ring completely while it still exists and glimmers.

And they can toss the ring among themselves until January 2025.

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But, because the ring’s power is ultimately illusory, then no good can come to those who put the ring on.

Cameron, May, Johnson, Truss have all come and gone, even if Johnson wants to come back again.

The ring, forged with lies, will destroy each politician who wants to wear it.

And after January 2025 – or some happier earlier date – the ring disappears.

The Conservative majority built on the back of Brexit disintegrates.

There will then just be a political void where the governing party used to be

And those who remember will wonder why any of it was ever thought worthwhile.

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So this is what happens when we do not have a functioning Prime Ministership

20th October 2022

I have been a constitutional geek since about 1987 – from the time of the conflicts about the “community charge” legislation and then Maastricht up to the Brexit showdowns in parliament and the Supreme Court.

But I have never seen political chaos like yesterday – which is carrying on into today.

On the face of it, it could seem nothing much happened: there was a parliamentary vote which the government won.

There was yet another cabinet resignation in a year packed with ministerial resignations, and a Downing Street aide was suspended.

All pretty normal in these not-normal political times.

But.

The details from yesterday were extraordinary: a confidence vote which was not a confidence vote; the opposition party almost taking control of the parliamentary timetable; a three-line whip for the governing party to vote against a manifesto commitment; a large backbench rebellion; a former minister not asking a question in parliament in return for a suspension of that aide; a reported standing row between the departing Home Secretary and the Prime Minister; reports of physical violence in the voting lobbies; a Prime Minister wandering almost-lost through the same lobby unable to properly register her vote; the Chief Whip and Deputy Chief Whip resigning and un-resigning, and then reportedly threatening to un-un-resign unless a statement was put out by Downing Street in the middle of the night (at 1.33am); and so on.

Even Wikipedia could not keep up:

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Well.

All the drama from yesterday points to one thing.

There has been an absolute collapse of Prime Ministerial power.

The details from yesterday (and today) are effects, not causes.

They are the effects of there being an implosion in Downing Street, of there being a gap where a functioning Prime Ministership should be.

One way of reckoning the significance of a thing is to imagine what would happen if that thing did not exist.

But now we no longer have to imagine what would happen if we ceased to have a functioning Prime Ministership.

We can now see.

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This is not – yet – a constitutional crisis.

It is certainly a political crisis – indeed, it is an exemplar of a political crisis.

And it certainly is a constitutional drama.

But not all political crisis tip into constitutional crises.

This is not a constitutional crisis – but unless Parliament and the Cabinet sort it it out, it well could do

The essence of politics is conflict – and it is the failure to resolve those conflicts that can trigger a crisis.

Parliament and the Cabinet now need to act – swiftly – to restore a functioning Prime Ministership.

Until and unless a functioning Prime Ministership is restored there will be an accumulation of more unfortunate and dramatic political details.

And there will be worse: because once a Prime Ministership fails, the government itself will tend to fail; and unless Parliament can check and balance that failure, then Parliament itself could be seen to fail.

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Brace, brace – as this blog often says.

But alas that warning is too late for the Prime Ministership of Elizabeth Truss.

That has already crashed.

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***

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How the constitution of the United Kingdom has been tested continuously for over seven years

19th October 2022

Imagine that a group of political experimentalists had come together about seven or so years ago to devise a scheme to test just how far the constitution of the United Kingdom could be pushed.

Imagine that demonic scheme was as follows:-

First: the test of a supposedly non-binding referendum in what was normally a parliamentary system

Second: the test to see if a Prime Minister could force through an extra-parliamentary invocation of Article 50, free from any statute.

Third: the test of whether – after over forty-five years – the United Kingdom could be extracted at speed from the European Union.

Fourth: the test of whether parliament could put in place a mechanism to ensure that such a departure required a withdrawal agreement to be in place.

Fifth: the test of whether a Prime Minister could close down parliament so as to force through a no-deal departure.

Sixth: the test of how the constitution can deal with with a dishonest knave of a Prime Minister.

And now we have a seventh: the test of how the constitution can deal with a vacant fool of a Prime Minister.

I may have missed out some of the tests along the way.

We may also soon have other tests – about how to deal with a border poll on the island of Ireland, or a move towards an independent Scotland.

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The constitution has been through a lot in the last ten years – perhaps too much.

Some would say that the tests set out above “show the need for a codified constitution” – but one suspects for some anything and everything “shows the need for a codified constitution”.

In each of the tests to date, there is support for the view that our uncodified constitutional arrangements have fared relatively well.

The supreme court checked and balanced the attempted misuses of Prime Ministerial power and asserted the rights of parliament; parliament with the Benn Act forced a government to enter into a withdrawal agreement; and the body politic ejected Boris Johnson as Prime Minister, even though he had recently won a substantial majority.

But the constitution needs a rest, on any view.

Constitutional law has now been continuously exciting for seven years; and it should never be exciting for more than a few weeks at most, if at all.

And as I type this, a Home Secretary is resigning and government backbenchers are threatening to vote against in a “confidence” motion.

The constitution is not going to get a rest anytime soon.

Brace, brace.

Again.

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Guest Post: Adam Wagner’s Emergency State reviewed by the legendary police blogger Nightjack

18th October 2022

The legal blogger Adam Wagner has written a book about the coronavirus regulations.

But the internet does not need another post by one legal blogger saying another legal blogger is wonderful, and so I asked someone else to review it.

Richard Horton was a police sergeant in Lancashire tasked with making sense of and enforcing the regulations on a daily basis, and so I asked him to do the review.

Horton also happens to be the legendary former police blogger known as Nightjack, winner of the Orwell Prize in 2009 – and it is a great honour for this blog to publish his guest post.

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Emergency State by Adam Wagner

Review by Richard Horton

 

A few years ago I was a jobbing Police Sergeant on a response team in South Lancashire. My hair was short, my beard was goatee and life was good, busy, but good.

Enter stage left the wily Chief Inspector of my parish with a cunning plan. “Richard” he said, “we have a job that needs doing at Licensing Sergeant. Could you take it on?”

I was on the far side of 50 with a borked right knee. Retirement was only a few years away. The joys of managing an ever increasing workload with ever decreasing resources and dealing with the belligerent antisocial at weekends were beginning to fade.

I was being offered one of those fabled “glide path to retirement” jobs.  This was the Licensing Department, a small team that knew the job better than me, lots of meetings, the occasional licence review. This was the job to see me out to my pension, and all I had to do was to get my head round the Licensing Act.

Of course I snatched his arm off.

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I settled into the new post fairly quickly. There was a first month punctuated by my wise staff coughing gently and saying “Errm Sarge, you can’t actually do that” and I was lucky enough to do some barrister-led training in licensing.

I had my feet underneath me, everything was going well and then March 2020 happened.

From then on, my colleagues and I had to operate in a rapidly mutating landscape of laws and regulations that soon resembled the hedge in Sleeping Beauty.

The world had caught a virus and here in England, the Government tried to take control.

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Nightly, ministers appeared on radio and television making policy pronouncements about the State of Emergency. From the start, there was a disconnect between what was being said and what was being written into the regulations.

On one notorious occasion, a local night club operator understood this and used better reading and barrister advice on those regulations to stay open until the last possible minute when the local council and I had convinced ourselves that the venue should close.

My team and I would literally huddle round our little office radio waiting for the latest press conference. I would wait expectantly for the publication of each iteration of the regulations. We then had to go out and enforce this stuff.

The simple life of a Licensing Sergeant was suddenly complicated. I vividly remember right at the start taking a police van out along the Merseyside border to check on some outlying pubs. I passed many groups of people, families as far as I could tell, who were going on a walk  for exercise. In many cases they looked very uncomfortable seeing a police van approach. I just smiled and waved. Some smiled and waved back. Some didn’t. It felt very strange.

Despite my best efforts, I could not reconcile the briefings to what was coming out in the regulations. Guidance from above was still some distance away. Policing was taking a “let a hundred flowers bloom” approach to enforcement. Things were getting muddled.

I thought I understood what it all meant. I became a sort of one eyed go-to for colleagues but in truth I just was not sure.

Into that chaos stepped Adam Wagner, a human rights barrister at Doughty Street Chambers. He was doing the hard work of reading, understanding and explaining the Coronavirus regulations for the rest of us. It came as some relief to have his work as a reference that proved more reliable and helpful than any amount of briefing and policy announcements.

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Almost inevitably, having stepped into the very centre of the storm, Wagner has now written a book about the State of Emergency and called it Emergency State.

As a history of the times it struck me as entirely accurate. As I read the book there were may moments where I was right back in the Licensing Office reading the latest regulation and thinking “Umm, OK, how are we going to make this work? Actually can we make this work?”

What was a substantial meal? Did a Scotch Egg count? Was the rule of 6 households, acquaintances, indoor, outdoor, socially distanced, masked? What distance was a social distance?  How loud could you sing at the karaoke? Was it a nightclub or a multi-use licensed venue? What actually was a nightclub? What parts of my responsibilities were in what tier?

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As soon as my copy of Emergency State arrived I was inevitably drawn to pages 66-68 of the book, Police – understanding of rules.

Wagner dip sampled police officers on their understanding of the regulations and as I feared, he found that the unenforceable guidance had been rolled up into the law by some of my colleagues.

He is generally sympathetic to our plight but rightly points out that in the State of Confusion, many people were given police instructions that were not based on any legal power and many fixed penalty notices were given out that should not have been.

This is important stuff when the police had been given such great power and authority. Policing should learn from this because in the cold light of hindsight, it will diminish our legitimacy.

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From the beginning Wagner sets out that this was a real emergency. There was a virus, it was killing many people, there was no cure, little effective treatment and no vaccine. There was a real prospect of NHS resources being overwhelmed.

He doesn’t claim any special medical knowledge but he understood early the value of bringing his experience and knowledge as a barrister to bear on getting a proper understanding of the scope and power of each development of the Coronavirus regulations. It is a balanced and thorough view. Many times as a I read Emergency State I found myself thinking “Yes Adam but….” only to find that my but was addressed a few paragraphs later.

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The book is helpfully organised chronologically with each chapter headed up by the relevant dates and poignantly the cumulative Coronavirus death toll.

Chapter 6 – Patchwork Summer took me back to that incredibly good summer in 2020 when I spent time patrolling parks with local council staff because there was a local political opinion that somehow groups of people gathering legally in a public park to enjoy picnics and cold beers from the local off licences was a thing to be stopped. Those gatherings were not stopped but we had to look.

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If I had to pick one chapter to survive it would be Chapter 8 – Step By Step.

We should never forget “Partygate” and Wagner sets out persuasive evidence that inside government, things were much closer to the Versailles court of the Sun King than to say, Battle of Britain era Fighter Command.

I read this chapter with a near constant smile. Who had kept all the receipts? Who knew what regulations were being flouted on which dates? Who could definitively say “You broke your own regulations, the ones that you made”? Who could point out that the Metropolitan Police policy on retrospective enforcement of the regulations explicitly allowed and indeed encouraged retrospective investigations into something like “Partygate”?

This comes as a conclusion to one of Wagner’s central themes that for about two years there was an exercise in strong use of state power with very little effective scrutiny. As a country we largely rolled with it but those thorny thickets of regulation  were often poorly thought out, impractical and unfair. All the while, behind the palace walls there was hedonistic exceptionalism.

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As I read this book, I could always feel Wagner setting out his evidence and heading towards conclusions. It is well written and accessible and it has to be to coherently draw together the ratcheting of fiat law into everything from the public joy of a walk in the country to the private joy of the bedroom. This is no dry legal telling of the tale. It takes the reader back into the daily history, the tragedies and the fear of Coronavirus. It has a narrative that you can feel.

If I were to clumsily summarise it, I would say that a State of Emergency was necessary but we somehow ended up with an Emergency State.

There are lessons to be learned about keeping that state in some sort of effective balance and on this occasion neither the courts or the legislature were particularly effective.

We (mostly) willingly surrendered many freedoms and although they were eventually returned to us, a blueprint for making further lock downs and restrictions on our freedoms with weak scrutiny and little ongoing accountability is now known. Without scrutiny and accountability we may be left solely reliant on the wisdom and responsibility of our state which is a bad thing.  Will those lessons be remembered when we pass this way again?

Probably not I think but if they are, this book Emergency State will be a good start for anybody that wants to know what really happened and more importantly, how it happened.

Richard Horton

TAFKA NightJack

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A Prime Minister in Name Only

17th October 2022

For a good part of the history of Prime Ministers, the title of “Prime Minister” was informal.

Until the late nineteenth century it was not used in official documents and it was only in the twentieth century that, here and there, it began to leave a trace on the statute book.

It was a title that was used just to describe the most dominant minister of the day, the one who controlled the cabinet and had the confidence of parliament – usually the First Lord of the Treasury but sometimes not.

And if today one asked an alien looking down from space who was the Prime Minister of the United Kingdom, that alien would assume it was Jeremy Hunt.

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Billy the Fish and the Green Baize Vampire

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One of the features of our uncodified constitutional arrangements is that the power of the Prime Minister varies depending on individuals, events and politics.

The last three Prime Ministers before Truss all lost office between general elections and, as this blog has often pointed out, every Prime Minister since 1974 has either gained or left office between general elections (or, most recently, both).

But loss of office is not exactly the same as loss of power – our constitution is so flexible that not even loss of office is a requirement for losing power.

And what we have at the moment is power moving away from the nominal Prime Minister towards another figure in the Cabinet.

An allusion, in a playful way, to the distinction made by the greatest of  our constitutional commentators, Walter Bagehot, between the efficient and the dignified (or, here, undignified) elements of the constitution.

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Many assume there will have to be a general election in the current circumstances – and there certainly should be.

But if the cabinet and the government majority in parliament can accept the current arrangements then there is no way forward to an early general election.

And in the meantime, and like the personal tax rate reduction, any influence whatsoever of Truss over policy is “delayed indefinitely”.

For it is Hunt who has control over policy and has the confidence of parliament – and of the markets.

We now have a Prime Minister in name only.

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(Apologies to Billy the Fish and Billy the Kid and the Green Baize Vampire.)

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Law and policy on a day of political chaos

14th October 2022

Well.

The word “chaos” – like “crisis” – can be overused in politics.

But on some days the word is apt.

A Chancellor of the Exchequer flew back after cutting short his meetings with the IMF in Washington only to be summarily sacked, and the government performed yet another U-turn on its “growth” mini-budget with what was a mini-press conference.

So much for policy instability – but it is the politics that has gone beyond mere instability into chaos.

The authority of the current Prime Minister within the governing party has simply collapsed.

They are simply not turning up any more:

The lack of authority is related to humiliation in the markets:

Perhaps this is the reason “Brexit” was named after “Grexit”.

These are not normal times, of course, but it is hard to see how the current Prime Minister can survive much longer in office – and even if she does, her authority is extinguished.

And when the Prime Minister’s power is low – let alone non-existent – then intense political instability will result until and unless another Prime Minister with authority can be put in place.

The centre cannot hold.

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Stepping back, we must remember that the office of Prime Minister has little formal power.

The name of the office barely features in the statute book – and for a good part of its history, the office had no statutory recognition at all.

The power of the office rests on two bases.

The first is the power that derives from the Royal Prerogative and other means of non-legislative power.

The Prime Minister can, in practice, hire and fire ministers, (again) call general elections, confer honours, set the policy agenda and chair the cabinet and cabinet committees.

But this executive power rests on the confidence of the Prime Minister’s politcal allies.

And once that respect is gone, it is gone.

The second power is that which comes from effective control of the legislature, especially in respect of matters on which there is a general election mandate.

Command of the House of Commons means control of the Finance Bills, and thereby mastery of revenue and taxation; and a general election mandate for a policy means that the House of Lords cannot needlessly delay or block the relevant legislation.

A Prime Minister with a substantial majority won at a general election has the greatest prize that the constitution of the United Kingdom can bestow.

And on paper, the current prime Minister has a parliamentary majority of about seventy.

But, as this blog recently averred, we now have, in political reality, a hung parliament.

The Prime Minister cannot even be confident that she could get a Finance Bill through the House of Commons unscathed, let alone any other contentious legislation.

And so, this Prime Minister has no authority in government and no control of Parliament.

It is only because the last few years have seen many other politically odd things that one can think that the current Prime Minister can survive another week.

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The striking thing about this political predicament is that it is entirely self-inflicted.

There was no objective reason – no requirement – for that mini-budget before the conference season.

And there was no good reason for the government to “press on” when it became obvious it had lost the confidence of the markets.

The reason they did so is not ideology – for as this blog contended not long ago, many successful politicians have been guided by ideology.

The problem with current Prime Minister is not that she has an ideology but that she seems to have nothing else.

One suspects that even now she has no sense of what actually she has got wrong: about why reality is not according to her political vision.

And so we have politicians who idolise “free markets” being destroyed one-by-one by the market.

It is quite a spectacle.

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We now get to see how our constitutional arrangements deal with yet another Prime Minister being forced from office between general elections.

It is not, of course, unusual for a Prime Minister to either take office or leave office between general elections.

As this blog has said many times, every Prime Minister since 1974 has either taken office or left office between general elections.

The unusual thing is now it is happening frequently, and we are now on our fourth Prime Minister since 2016.

The cause of this political instability is not that the governing party cannot obtain a majority – it has had a working majority between 2015-2017 and from 2019 onwards.

There is a deeper problem in the politics of the United Kingdom which means that even a governing party with nominal majorities is being relentlessly wrecked.

Brace, brace.

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Why the Chancellor of Exchequer should read ‘Ghosts of Empire’

13th October 2022

Here is a book that has become strangely, suddenly topical:

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It is not a bad book, and it has many merits.

The book is not a “woke” critique of the British Empire nor is it a sturdy defence.

It is more of an account of the British Empire from the perspective of those who administered it.

And of those administrators, the author is critical.

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“Officials, as I hope to show, often developed one line of policy, only for their successors to overturn it and pursue a completely different approach.  This was a source of chronic instability in many parts of the empire.”

Successors suddenly overturning policy and pursuing a completely different approach is a bad thing.

Chronic instability is also a bad thing.

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“….empires, through their lack of foresight and the wide discretion they give administrators, lead to instability and the development of chronic problems.”

Lack of foresight and instability are bad things.

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“The British Empire is a bizarre model to follow for fostering stability in today’s world.  Indeed, much of the instability in the world is a product of its legacy of individualism and haphazard policy-making.”

Haphazard policy-making is a bad thing.

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“…anarchic individualism led to instability because there was no policy coherence or strategic direction.”

A lack of policy coherence and strategic direction are also bad things

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“Often strong-minded officials and governors would, by a metaphoric sweep of the hand, reverse the policy of decades, thereby creating more confusion and instability.”

Reversing the policy of decades by a metaphoric sweep of the hand, thereby creating more confusion and instability, is a bad thing.

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Our new Chancellor of the Exchequer has suddenly sought to reverse decades of “Treasury orthodoxy” – and summarily sacked the respected Treasury permanent secretary Tom Scholar.

Without sharing the details of the “mini budget” with cabinet the new Chancellor of the Exchequer announced radical changes to established policy, thereby causing uncertainty which was foreseeable.

Off on a frolic of his own, the new Chancellor of the Exchequer single-handedly created wider systemic instability, so much so that the Bank of England is now repeatedly having to intervene so as to prevent meltdown.

Because of the new Chancellor of the Exchequer, we now have repeated U-turns, which are the very defintion of haphazard policy-making.

And because of the new Chancellor of the Exchequer we certainly now have “instability and the development of chronic problems”.

Indeed, the conduct of the new Chancellor of the Exchequer since he took office is an exercise of the “anarchic individualism” which the author of Ghosts of Empire warned us against.

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If only the new Chancellor of the Exchequer had read Ghosts of Empire before taking office.

Oh, he wrote it.

***

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The Scottish independence referendum case before the Supreme Court

12th October 2022

Yesterday and today there has been a fascinating case argued before the Supreme Court.

The case is about whether the Scottish parliament can legislate not for independence but for a non-binding referendum on the question of independence.

There is no dispute that actual independence is a matter legally reserved for the parliament in Westminster.

Nonetheless the Scottish government has come up with this clever wheeze of saying that even though the union is a reserved matter, there should be nothing to stop it holding an advisory referendum on the issue.

But the really clever wheeze is how they have framed this case so that it is being heard at the Supreme Court even without a bill being presented to the Scottish parliament let alone passed by the Scottish government.

The Scottish government has done this by means of a “reference” – which allows the devolved governments to refer questions directly to the Supreme Court.

This is unusual both legally and constitutionally, as the Supreme Court is normally an appellate court and not a court of first instance.

And so this is a rare occasion where the Supreme Court is acting, in effect, as a pure constitutional court, rather than just happening to hear an appeal of a constitutionally interesting case.

The Supreme Court website sets out the following:

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The reference is framed as being about whether it is open to the Lord Advocate to advise that a bill with such a provision can be brought forward – as set out in the Scottish government’s published case:

This is an ingenious approach.

And nobody knows if it will succeed – not least because there is no precedent to guide us.

The Scottish government needs to jump two hurdles.

The first is the jurisdictional hurdle of whether this is a question that can even be answered by the Supreme Court at this stage.

The second is the substantial hurdle of whether such an advisory referendum is within the competence of the Scottish parliament.

On the balance of probability, any party to litigation needing to jump two such high hurdles is unlikely to succeed.

But nonetheless this is certainly a case to watch with interest – and you should, if possible, watch the footage of the hearings linked to at the Supreme Court page.

My own personal view from having watched some of the hearing is that the Lord Advocate – on behalf of the Scottish government – put the case as well as it could be.

In particular, she explained the legal route that the Supreme Court could take should it want to do so.

In response, the United Kingdom government was less impressive, though this may just be my personal bias.

But little is likely to depend on the oral advocacy – the Supreme Court now has to digest the extensive written documents which have been placed before it by the parties, and that may take months.

So we may have some time to wait.

Whatever the decision, it will be interesting to read the court’s reasoning in this exceptional and potentially consequential case.

For we all know about “advisory” referendums, don’t we..?

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A proposal: the creation of His Majesty’s Inspectorate of Public Procurement

11th October 2022

Yesterday’s post on the latest court defeat of the Good Law Project touched on a serious problem with public procurement in the United Kingdom.

The problem is, in a word, accountability.

The law of public procurement provides for special duties on public bodies (and some utilities) when they procure goods, services and works.

These special duties do not apply to private purchasers of such things.

These special duties include the legal principles of transparency and equal treatment.

One reason for these special duties is to promote competition: public supply contracts can be lucrative, and so the competition for such contracts should be as open as possible.

Another reason for these special duties is that it is a public good that public bodies are transparent and treat tenderers fairly and equally.

But.

It is one thing to have such duties, but it is another to ensure that they are enforced and observed.

The unfortunate implication of the most recent Good Law Project court defeat seems to be that it should be left to disappointed tenderers to bring legal actions in respect of non-compliance with public bodies with the legal principles of public procurement.

There is, of course, no dispute that such disappointed tenderers would have standing to bring a challenge.

But it is unrealistic to expect typical government suppliers to litigate against their customers and to accept substantial litigation and costs risks.

Sometimes it can make commercial sense for a disappointed supplier to bring such a claim, but it is rare in practice.

Typical government suppliers have no incentive to vex or irk their main customers – and, regardless of the theory that such things should not be taken into account in the next procurement exercise – upsetting major customers is not usually a sensible thing to do.

And if disappointed tenderers are disincentivised from bringing challenges, then who enforces the rules?

The courts do not seem to like self-appointed crowd-funded publicity-seeking groups like the Good Law Project bringing such challenges.

But if such groups do not bring challenges, then who will?

My own view, for what it is worth, and as a former central government public procurement lawyer, is that there should be an independent statutory body that can challenge seemingly errant public procurement exercises.

This would do domestically what the European Commission can do in respect of breaches of European Union public procurement laws.

It would be like an Office of Fair Trading or National Audit Office but for public procurement, with powers to request documents and issue sanctions.

Such a body would also be able to look at complex procurement issues in a way that a court is ill-equipped to do in litigation.

And to placate those who would not like this domestic equivalent of the European Commission, it could be called something quaint like His Majesty’s Inspectorate of Public Procurement.

The alternative – given that bodies like the Good Law Project are not to have standing – is to have a system of law that is supposed to act in the public interest which is, in effect, unenforceable other than by the untypical and occasional, desperate and litigious government supplier.

The “public” needs to be put back into public procurement, and this is one proposal for how that can be done.

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The Good Law Project has had another bad day in court – but this decision raises serious questions about enforcing the “public” element of “public procurement”

10th October 2022

The Good Law Project (GLP) has had yet another bad day in court.

Many are uncritical fans of the the GLP – I am not, but neither am I a committed opponent of it either.

But there is something in the recent defeat which I think should prompt wider discussion.

For not only did the GLP lose the case on the substance, it also lost outright on the question of “standing” – that is whether it was in the legal position to bring the case in the first place.

In essence: the GLP was not an “economic operator” adversely affected by the procurement decisions in question, and so it was not able to bring an application for judicial review.

If you read the court’s reasoning on this – from paragraph 498 onwards – you can see the judge’s points.

But.

The law of public procurement is distinct from the law relating to procurement generally because public authorities have to comply with certain public law principles when making decisions – principles with which a private entity making procurement decisions do not need to comply.

This is because those principles – such as transparency, equal treatment and so on – are for the public benefit, and not just the interests of the (potential) bidders.

And if these principles are to have teeth – that is, if they are to make a difference – then they need to be enforceable.

Else they are polite fictions.

An adversely affected competitor may perhaps have a private commercial interest in challenging a botched public procurement decision.

But that will be on private, selfish grounds – and not out of some sense of altruism.

So how are the unselfish public law principles to be enforced?

Given these principles are there to benefit the public generally, should it only be left to when the breach of principle overlaps with the private interests of a disappointed competitor?

One answer is to give bodies such as GLP standing to bring claims.

But the import of this judgment is that such a wide view is not valid.

And perhaps there are questions to be asked about self-appointed interest groups bring such strategic and tactical litigation.

But if not groups such as GLP, then who?

In the European Union there is an easy answer: the European Commission can bring proceedings for breaches of European Union procurement law.

But there is no such body in domestic law: there is not really a public procurement equivalent to the Office of Fair Trading.

Perhaps there should be.

But, with this decision on standing, it is not obvious what the “public” means in “public procurement”.

Yes, the GLP has many critics – and some of those criticisms are valid – but there is also something not quite right about a system of “public procurement” where the public law principles of transparency, equal treatment, and so on, can only be enforced if they happen to coincide with the private interests of a competing economic operator willing to assume litigation risk against a major customer.

(And few – if any – regular government suppliers want to litigate against their main customers, as it leaves a poor impression for the next tender.)

If the courts are going to take this strict view of standing, then the “public” element now needs to be built into the process some other way.

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This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome.