Category: Brexit

Boris Johnson as a figure in the folklore traditions of tricksters and unfortunate bargains

7th July 2021

Once upon a time my blog had a different name, and that name was Jack of Kent.

This was somewhat odd, as my name is not Jack and I am not from Kent (though I lived there at the time).

But in those days to give your blog a name was then a fashionable thing to do, like it once was to give yourself a calling name when CB radio was popular.

The Jack of Kent after whom the blog was named is a figure in the folklore of Wales and the west midlands counties.

You can read about the chap here.

In essence: he was was a figure who outwitted the devil by having careful regard to the actual wording of texts.

And so it seemed a good name for a legal blog.

Jack of Kent in turn was part of the folk tradition – and certainly not only in England and Wales – of stories about people caught in diabolical deals.

The tradition that had provided stories as diverse as Faust, Dorian Gray and Robert Johnson.

The unfortunate bargain is a staple of folklores and legends – with those entering into the bargains either suffering or, as in the case of Jack of Kent, irking the devil by holding the devil to its exact terms.

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Another staple, of course, is the trickster – a figure who is in many (if not most) of the traditions around the world – Loki, Puck, Anansi, and so on.

Their trickery is, of course, general – and it is not limited to reneging on obligations.

But what is uncommon – at least to my knowledge – is a story when it is the trickster who unwittingly has got himself or herself into a bad bargain.

Frankly: it is usually the trickster – in devil form – who is the one enticing a gullible or ambitious victim into a deal.

So there may be little guidance in folklore for what would happen when it is the trickster themselves seeking to get out of the deal.

But now we have a real-life example, to make good the possible paucity of folklore versions.

We have the unfolding story of the trickster Boris Johnson and the Brexit agreement.

Of course, Johnson did not realise what he was getting into.

Fo him, a deal – ‘oven-ready’, as he boasted – was the casual tool for other trickery.

Tricks he played on the Conservative MPs whose votes he needed and on the Democratic Unionists, whose voted he realised he did not.

And a trick he played to gain an overall majority in December 2019, with his solemn promise to get Brexit done.

Any problems about this deal were then safely in the future.

But those problems are here now – and they cannot be escaped with his usual bluster and evasions.

An international agreement was signed, and mere trickery will not get him out of it.

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What now?

A Loki may be able to change their nature – at least according to current retellings – but it is doubtful that a Boris Johnson can.

The best scenario is that the trickster fails and is seen to fail – and the story of Brexit can become in part an uplifting morality story about the futility of facile politics.

But there are other possibilities: that the trickster responds with ever-greater tricks – more diversions and misdirections, more lies – creating something that lends itself to a tragedy, or an epic – and not to a mere quaint folklore tale.

Brace, brace.

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The one incomprehensible and inexplicable thing about Brexit: why did the Democratic Unionist Party support it?

5th July 2021

There will be many things about Brexit which will seem foolish or knavish.

Bad things that will make you sad or mad.

But usually you can work out the ‘why’ about the thing in question – even if you disagree with it, or even loathe it.

It may be that somebody was incompetent or dishonest.

But there will be an explanation of some kind.

There is, however, one thing – at least – which will always be incomprehensible.

Why did the Democratic Unionist Party and other unionists in Northern Ireland support Brexit – either so strongly or at all.

The shared membership of the European Union north and south of the border on the island of Ireland was the best guarantee of the continuation of the union.

There would never be any great urgent need for a border poll, and no great urgent need for any fundamental change, from any perspective.

But by supporting Brexit – and supporting the Conservative government policy of Brexit meaning departure from the single market and the customs union – this has made a border poll more likely and also a vote for a united Ireland more likely.

If a mischievous demon had been tasked with finding the most effective way of sabotaging the union, that demon would also have cheered on first Brexit and then the Theresa May/Boris Johnson approach of departing from the single market and the customs union.

It is a decision so incomprehensible that the two usual explanatory models of bad political decisions – foolishness and knavery – do not provide assistance.

For to posit either as an explanation is to imply that a thing is explicable, rather than inexplicable.

As a scientist would say: it was not even wrong.

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Are there again things stronger than parliamentary majorities? Bogdanor and the question of Unionist civil disobedience or even rebellion

In today’s Sunday Telegraph there is a short, 750-word opinion piece by Vernon Bogdanor, the eminent professor of government.

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Previously I have criticised Bogdanor for not appreciating the constitutional significance of the Good Friday Agreement – see here and here – to which he responded here.

My view is that he has a vision of the constitution that holds that the position before the Good Friday Agreement is the norm from which politics and law have since deviated.

If you look at that exchange, you can form your own opinion on the merit or otherwise of my view.

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Bogdanor’s latest opinion piece is about the Northern Irish high court decision last week in respect of the challenge by unionists of the Northern Irish protocol – a case which this blog touched upon here.

The judgment is some 68-pages but is readable and is worth reading.

Bogdanor spends the first part of his article setting out a general account of the submissions made by the applicants and he then briefly summarises the court’s decision.

His summaries are not the ones that I would write – but they are unexceptional even if not balanced.

And then.

The article takes a turn.

We get to the final three paragraphs, and something happens.

Let’s take these paragraphs in order – and sentence-by-sentence.

*

‘The uncodified British constitution allows Parliament to decide that Northern Ireland should be subject to different goods regulations and trading rules from the rest of the UK.’

The second part of that sentence is generally correct – though it is hardly the fault of our uncodified constitution.

Such a decision could easily have taken place under a codified constitution.

It was, of course, a decision for which the government had a mandate in the December 2019 general election as part of the ‘oven-ready deal’.

*

‘But Unionists hold a different view of the constitution.

‘They hold that loyalty to Westminster is not unconditional, but dependent upon respect for the Union.’

This is a rather significant thing to say – and it contends that the legitimacy of the United Kingdom state is ultimately contractual – even transactional – as that loyalty is dependent on ‘respect’.

The implication of this would appear to be that if the United Kingdom state is in breach of this contract then the unionists no longer should abide by the law of parliament.

*

‘That is why in 1974, a power workers strike by Unionists brought down the Sunningdale Agreement, which had provided for a cross-border Council for Ireland giving the Republic what Unionists believed was excessive influence over Northern Ireland.

This refers to this exercise in civil disobedience.

Is Bogdanor suggesting there could, as a matter of fact, be similar civil disobedience now?

Or is Bogdanor even averring that such civil disobedience would be justified under our uncodified constitution?

It is not easy to tell.

*

‘The Unionists are Queen’s rebels.’

I am not sure what Bogdanor means by this.

*

‘Where then stands the Protocol?

‘The EU Commission has agreed to the Government’s request to extend the grace period for chilled meat for three months.

‘But that merely kicks the can down the road.

‘In any case, the argument is not about sausages but about whether Northern Ireland is to be cut off from the rest of the UK.’

Here we perhaps go from the salami to the ridiculous.

The dispute is, of course, more than about sausages – but to escalate it to it being about the very union does not necessarily follow.

There are a range of resolutions to this dispute – either through the mechanisms of protocol or by amending it – all of which are consistent with the continued existence of the union.

*

‘The court in Belfast is, however, right to this extent.

‘The question of whether the Protocol is constitutional is one not for the courts but for politicians.’

Here the contentions of the opinion piece appear to become confused.

A couple of sentences ago, Bogdaonor was saying that there could (and even perhaps should) be civil disobedience.

Civil disobedience means direct action outwith the processes of political institutions – that is out of the hands of politicians and the formal political process.

Unless, of course, what he means by ‘politicians’ are the leaders of the envisaged civil disobedience.

*

‘The case for the Unionists is based on the Enlightenment principle of consent of the governed.’

Is this proposition correct?

The basis of unionism is the positive belief in membership of the United Kingdom, a belief that would still have force even if (or when) it becomes a minority view in Northern Ireland.

If (or when) that does come to pass, would a united Ireland (as endorsed in a border poll) be an imposition on the unionists?

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‘Sadly, the Unionists of Northern Ireland, together with Kurds and Israelis, are deemed not to be entitled to the benefits of this principle by progressive theologians.’

No, I am not sure what this means either.

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‘But it is, nevertheless, a principle which should be enthusiastically championed by the Conservative and Unionist party of the United Kingdom.’

This is the last sentence of the article, and its import is unclear.

The Conservative Party is currently the governing party of the United Kingdom and it stood on an explicit manifesto commitment to get Brexit done by means of the withdrawal agreement – which contained the Northern Irish protocol.

For them to now switch would mean negating a manifesto commitment on which they won an emphatic victory in a general election dominated by the issue of Brexit – a general election that treated the whole of the United Kingdom as a single political unit.

This treatment of the United Kingdom as a single political unit was also, of course, adopted at the time of the 2016 referendum, where a majority the voters of Northern Ireland (like Scotland) voted to stay in the European Union.

Presumably the decision of the parliament of the United Kingdom to take Northern Ireland out of the European Union against the wishes of the people of Northern Ireland was also a breach of some enlightenment principle or other.

And when the Conservative Party do not ‘enthusiastically champion’ what Bogdanor wants them to champion, what then?

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Another constitutional principle – also in part from the Enlightenment, as it happens – is that of the rule of law.

The ‘rule of law’ is not mentioned in Bogdanor’s 750-word piece, which still found room for mention of both the ‘Queen’s rebels’ and ‘progressive theologians’, and is a shorter phrase than either.

The contention that unionist loyalty is ultimately conditional despite the law of parliament is reminiscent of “there are things stronger than parliamentary majorities” – a phrase with an unfortunate history in the context of Ireland.

A general strike – such as in 1974 – was not the only way that unionists in Northern Ireland have taken it upon themselves to prevent a perceived breach of the perceived contract between the government and the governed.

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To the extent that Bogdanor is warning in a positive way that peace and stability in Northern Ireland requires sincere and proper regard to the unionists then no sensible person can gainsay him.

But to the extent (if any) that Bogdanor is contending that the uncodified constitution and the principle of the consent of the governed justify a resort to resistance and rebellion (queenly or otherwise, and unarmed or otherwise) and discard for the rule of law then I fear he has fallen into error.

Bogdanor is right to say that political questions should be dealt with politically and not by the courts, but such questions also should be dealt with in accordance with the law.

**

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The problem with ‘constitutional litigation’ in the United Kingdom

30th June 2021

There has been another ‘constitutional case’ arising out of Brexit – this time from Northern Ireland.

The full judgment is here – and in summary the court holds that the Northern Irish protocol is lawful.

In doing so the court has, among other things, held that even if the protocol was in conflict with the Act of Union, the protocol would prevail.

This required the court to compare and contrast two ‘constitutional’ statutes – the Act of Union and the Brexit withdrawal legislation.

Other ‘constitutional’ cases, such as the two Miller cases, have required the courts to balance examples of the prime ministers discretion (Article 50 notification and prorogation) with the doctrine of parliamentary supremacy.

And indeed every ‘constitutional’ case in the United Kingdom requires the courts to balance different elements of the constitution.

But what no ‘constitutional’ case in the United Kingdom does is to compare and contrast a thing against a codified constitution.

In this way it could be contended that the United Kingdom does not have true constitutional litigation – at least in the way others in the world would understand the term,

A case may have constitutional themes, and engage the elements of the state, but for the court it is just an exercise in constructing powers and rights, and in interpreting legal texts, just as with any other case.

A case may thereby be constitutionally important without being what lawyers in other jurisdictions would regard a ‘constitutional’ case.

And that is why constitutionalism in the United Kingdom is – or should be – about taking checks and balances seriously.

Because ultimately that is the essence of our constitutional arrangements.

Checks and balances are all we have got.

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Is there a business case in existence for the announced ‘National Flagship’?

23rd June 2021

When the proposed new national flagship was announced, there were a number of odd things about the announcement.

(Please see this earlier post on this blog, especially the many highly informed and insightful comments beneath.)

One thing which seemed especially odd was that it was announced by the prime minister’s office – and the only mention of the royal navy or of the ministry of defence was that navy would crew the boat.

There was no mention – explicitly – of which government department would pay the procurement/commissioning of the ship – nor of which government department would be responsible for its envisaged thirty years of maintenance and repair.

As a former central government public procurement lawyer, this seemed strange.

The announcement seemed, well, just flimsy – the shallowest of press releases.

Since then it has become obvious why the announcement was so flimsy.

The reason is that the thinking behind the announcement also has been flimsy – if it can be characterised as thinking at all.

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As the Sunday Times has now reported:

‘The Cabinet Office, which was originally asked to devise the plans, the Department for International Trade, which was originally expected to benefit from them, and the Ministry of Defence, which has now been saddled with the project, are all in the dark about where the money is coming from, not least because the MoD is fighting to plug a £16 billion black hole in its annual budget.

[…]

“‘Another official confirmed: “The royal yacht is a complete and utter shitshow. When it was first floated, the PM wanted it to be built in Britain. It was given to [Cabinet Office minister Michael] Gove to sort out, but it became clear that under procurement rules it could only be built here if it was a navy thing with a bunch of fake weapons on board. So Gove passed it on to the MoD. The Treasury stayed out of it.’

None of this is a surprise; indeed, all of this can be inferred just from a close critical reading of the original announcement.

Anybody with even the most basic awareness of public procurement would realise that if this was a civil (non-military) project, there could be no legal restrictions as to which tenderers would be considered.

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Now the Guardian is reporting:

‘Downing Street has backed down from insisting that the Ministry of Defence should foot the whole bill for new royal yacht Britannia in a Whitehall row about the funding of the £200m vessel.

[…]

‘The Ministry of Defence (MoD) is resisting being lumbered with the cost of the project at a time when it is trying to fill a £16bn backlog in its equipment budget.

‘On Monday, Downing Street indicated that the yacht would be paid for out of the defence budget, with a spokesperson saying: “The procurement process, which is being done through the MoD, will reflect its wide-ranging use and so it will be funded through the MoD.”

[…]

‘No 10 then clarified on Tuesday that the MoD would initially only pay for the procurement process, and that the rest of the costs has not been allocated.

‘A Downing Street spokesperson said: “This is a ship that will promote UK trade and drive investment back into our country. So we expect any costs of building and operating the ship will be outweighed by the economic benefits that it brings over its 30-year lifespan.”’

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This is what public policy-making and decision-making looks like when it is made up as it goes along.

The most plausible explanation is that nobody in government has a clue about how to go about the procurement exercise for this boat.

I am not a lobby journalist – and so I can add not other telling quotes from insiders, but I can add something.

Prompted by the announcement, I thought I would make a freedom of information request.

I made the request to the cabinet office, on the understanding that the cabinet office was the department responsible for that announcement of national flagship – and that was also the department that would deal with freedom of information requests for the prime minister’s office.

And today came the response to the request.

The cabinet office does not possess a business case for the national flagship – even though it was the department that announced it.

This odd situation can perhaps be explained as follows, either:

– there is a business case held in Downing Street, but my request clumsily missed it;

– there is a business case held in Downing Street, but the cabinet office has given me false information;

– there is a business case for this announced procurement, but it is held in another government department and has not been shared with the prime minister’s office or the cabinet office; or

– there is no business case, despite the public announcement.

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What we do know is that a business case should always precede a procurement exercise – and so the fact that a government department may then handle the procurement exercise does not mean that the business case is then created.

That would be to put the dinghy before the boat.

Business cases precede procurement exercises – and should determine whether there is a procurement exercise or not.

The reasonable suspicion of anyone following this daft exercise is that there is no business case – and that this prestige procurement was announced without any preliminary thought whatsoever.

And now the government cannot back down.

And this is how £200 million (at least) is to be spent by the government.

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POSTSCRIPT

I have now found this fascinating parliamentary answer – there appears to be no ‘assessment’, only ‘discussions’.

I have set out further information from answers to parliamentary questions in this thread:

https://twitter.com/davidallengreen/status/1407756269394481154

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Pointing out the United Kingdom government negotiated and signed the Northern Irish protocol is not enough – those opposed to the government’s post-Brexit approach also need a positive policy

13th June 2021

‘I told you so.’

These is perhaps the most dangerous four-word phrase in the English political lexicon.

And the danger is that the one who did tell others so then just shrugs, and does nothing more.

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A political idiot does [x], even though you (and others) averred that [x] would be irresponsible and dangerous.

Of course: it is natural and right to point out the idiot did [x] even though the irresponsible and dangerous idiocy was both foreseen and foreseeable.

And this is what this blog did yesterday.

But.

It is not sufficient.

The government can (and will) just shrug off the criticism.

And a sufficient number of voters will nod-along with the government, regardless of these errors being pointed out.

Any sensible person knows that the government made serious mistakes forcing though Brexit at speed and without a plan, and in signing up to a withdrawal agreement without understanding or caring what it said.

It is bleedingly obvious.

But there is only so much purchase in pointing this out, and that purchase is unlikely to extend to changing any voters’ minds.

Something more is needed.

Something positive.

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The biggest problem in the politics of the United Kingdom at the moment is that neither the government nor the official opposition have any substantial positive vision of the United Kingdom after Brexit.

The government, having obtained Brexit, is the proverbial dog that caught the car.

And the opposition are refusing to engage with Brexit at all, fearful of the repercussions of mentioning it – and a cowered opposition is, of course, a useless opposition.

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It is fun – and easy – to point out the government entered the Northern Irish protocol of its own free will.

The pressure to sign it at speed was self-inflicted.

We know this, and they (if ministers are honest with themselves) know this.

Yet the protocol was only, in effect, a backstop and an insurance policy (though less of a backstop and an insurance policy than the proposed formal arrangements it replaced in the course of the negotiations).

And what is the positive vision of the post-Brexit relationship between the United Kingdom and the European Union?

Does anyone – anyone at all – have a positive vision of what happens next?

*****

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The government’s Brexit problems were foreseeable and foreseen – but ministers did not care and went ahead anyway

12th June 2021

Some things remain true even when they are said again, and again, and again.

One of these truths is that a Brexit done at speed was never going to go well – and that the government of the United Kingdom refusing extensions (either to the Article 50 period or the transition arrangements) was gross irresponsible idiocy.

Ministers placed themselves under self-inflicted pressure and suffered self-imposed weaknesses.

All to ‘get Brexit done’.

Another of these truths is that if the United Kingdom left the single market then one of three things would have to happen.

Either the United Kingdom would have to stay aligned with the single market anyway, or there would be a border on the Irish mainland, or there would be a border in the Irish Sea.

Any other possibility would be fanciful, if not fantasy.

A further truth is that there was little point going through with Brexit until and unless the United Kingdom had a settled and realistic view of what would then follow, in terms of its relationship both with the European Union and with the rest of the world, and in terms of what would happen in respect of Northern Ireland.

But on this basis the United Kingdom still does not know what we want, though we want something.

The only possible merit, from a Brexit point of view, of this rushed, muddled and directionless Breixt is that, if the process had lasted any longer, it may well have been reversed.

There may have been other Brexits possible in theory, but this was perhaps the only one possible given the politics before the 2019 general election.

This is not a merit from any sensible and objective view, but perhaps it explains why this botched Brexit did happen, instead of any other.

All to ‘get Brexit done’.

*****

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Beware Lord Frost’s ‘legal purism’ line – for it means a disregard for the rule of law and is strategically unwise

 9th June 2021

There is a new line-to-take.

This line is that a requirement to comply with legal obligations is to be dismissed as ‘legal purism’.

This line is being promoted at the moment by Brexit minister Lord Frost in respect of the obligations of the United Kingdom under the Northern Irish Protocol (obligations that, of course, Frost himself negotiated and endorsed).

Frost avers that for the European Union to require the United Kingdom to comply with this obligations is to take a ‘purist’ approach.

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For many years the United Kingdom was protected from the European Union’s legal(istic) approach to its engagement with ‘third countries’.

As one of the big three member states, it generally got its way internally, and had a number of opt-outs for things it did not like.

Trade agreements were left to the European Commission to negotiate: the United Kingdom just benefitted from the results like a teenager benefiting from the washing and ironing magically being done.

And now we are on the outside – looking in on an international organisation that, more than any other in the world, is a creature of law.

And the European Union takes law very seriously.

We are going to have to get used to it.

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That said: it is not unusual for a party to a serious agreement to want to re-negotiate terms.

And mocking Frost for wanting to change something he so recently approved can only go so far, and it does not rid us of his perceived concerns.

Perhaps there is a case for the protocol to be amended, or perhaps not.

But, either way, it is a folly for him to approach the problem by dismissing legal obligations as ‘purist’.

For, if this is the United Kingdom’s casual approach to law, why would one expect the United Kingdom to abide by any replacement legal obligations?

By attacking the very notion of legal compliance, Frost is not helping the long-term interests of the United Kingdom.

What he is doing is a silly thing, and he should not go there.

The rule of law matters – pure and simple.

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The Ghost Regulation of Brexit – how Leave campaigned for the repeal of a regulation that never existed, and why Remainers should not gloat

5th June 2021

To the extent there was a positive case for Brexit, it was in the broadest terms – ‘taking back control’ and so on.

The impetus was primal – it did not matter what we were to be taking back control of, we were taking back control, and that was enough.

Remainers may scoff at this, but this was a basis on which Leave won and Remain did not – and the glaring fault of the Remain side was a lack of an equal and opposite positive case.

But.

One problem of any general case is that it can lack in the particulars.

And it was a feature of the Leave side that they rarely specified what would actually change in substance if the United Kingdom (were/) was to leave the European Union.

A consequence of this vagueness was that once the referendum vote was made for Brexit, there was a range of possible models for the further relationship with the European Union, from hard Brexit to Brexit-in-name-only.

Another consequence was a sense of ‘what now?’ – like the dog who caught the car.

Of course: given the general case for Brexit, this did not matter – and it still does not matter.

A case not made on detail is not defeated by that lack of detail.

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Yet the case for Brexit does produce some telling (and entertaining) examples.

The journalist Marcus Leroux showed one recently on Twitter.

First, the question:

Then the answer given:

That was (presumably) in 2016 – but earlier in 2021 Longworth was still citing this ergonomics directive:

(I have checked – the ergonomics directive was an example given in that 2021 Times piece.)

And here is the good (and fun) kicker:

The directive never existed.

It is a ghost directive.

And yet from at least 2016 to 2021 it was cited as an example of the point of Brexit – and published as such this year in a national newspaper.

Leroux continues:

And here is the passage in the 2013 government report (three years before the referendum):

Cogito ergonomics sum – or not.

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Of course, Remainers may gloat at such a prize example of idiocy – but it no more discredits Brexit than if it were true, because that was not why people voted and campaigned for Leave.

And the fact it has taken until 2021 for this to be exposed (at least to my knowledge) shows it was not uppermost in the minds of many following Brexit.

There is also, no doubt, ghost facts on the Remain side as well.

That said, this ghost regulation shows that it was perfectly possible for the United Kingdom to resist unwanted regulations in the European Union before 2016.

And there is the prospect that the regulatory regime the United Kingdom develops now was also possible within the European Union.

If so, this means – in a practical regulatory sense – there was no point in Brexit.

But at least we took back control, and we caught the car.

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Five glaring issues about the announcement of the ‘new national flagship’ prestige procurement

2nd June 2021

You may think that after that botched ferry contract that the government would steer clear from further Brext-related maritime procurements.

Then the chair of the public accounts committee said:

‘The Department for Transport waited until September 2018 to start thinking about the risks to freight transport across these important routes and entered into a £13.8m contract with Seaborne Freight despite it being a new operation, owning no ferries, and not having binding contracts to use the specified ports.

‘We will be pressing the Department for answers on how it awarded its three new ferry contracts, what it is doing to manage risks and exactly what it intends to do now it has axed the contract with Seaborne.’

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You would be wrong, for the government has now announced a new procurement exercise, the cost of which is reported to be currently set at £200 million – that is about fifteen times more expensive than those non-existent ferries.

It is a curiously worded announcement – and should be read carefully in full.

Here are five observations about what the announcement says – and does not say – about this prestige project – from my perspective as a former central government public procurement lawyer.

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There is no mention of the royalty in the announcement.

Given previous attempts at such a flagship have said that it would be a new ‘royal yacht’, this must be a deliberate omission.

One would not accidentally fail to mention that the new ship was to be a royal yacht and have royal blessing if such things were true.

Indeed, the glaring omission in the announcement indicates that the announcement is a negotiated document, where the wording has been subject to intense consideration and internal discussions and approvals.

And so, although the Crown is prevalent in the polity of the United Kingdom – from underpinning the executive, the legislature and the judiciary, royal charter bodies, the maintenance of the queen’s peace and the armed services – there appears to be one thing the royalty does not want to be connected with, and that is this ship.

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The second omission is that the announcement does not say – expressly – which government department will be responsible for procuring (and/or commissioning) and – as importantly – maintaining the ship.

The announcement hints that it may be the Ministry of Defence – and there is mention that ‘the ship will be crewed by the Royal Navy’.

And given that the MoD is the one government department with the experience and resources to procure and maintain such a ship then this would be its natural administrative berth.

But the announcement does not say – expressly – that it will be under the MoD, and the purpose of the vessel does not appear to be a military one.

And there is no particular reason why the MoD – with its own budget constraints – would want to be given the costs of procuring and maintaining a ship with no obvious military purpose or value.

If – and it is an ‘if’ – the ship is to be procured and maintained by another government department, but with an agreement with the MoD for the use of the Royal Navy for crewing the ship, then we have the prospect of Whitehall (ahem) surf-wars over which department will be responsible in the event of any problems.

And prestige procurement projects do tend to have problems.

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A third omission from the announcement is about which suppliers will be responsible for the whole-life maintenance of the ship.

The announcement states that a ‘tendering process for the design and construction of the ship will launch shortly’ – but there is no mention of any similar tender exercise for the upkeep and repairs to the ship over its expected thirty-year service.

Given that this ship is (intended to be) a bespoke construction, the question of ensuring that there are sufficient arrangements for its ongoing maintenance is just as important as the initial design and construction.

A plausible scenario is that a bespoke ship is designed and constructed but its service life is severely limited as no thought had been put into what happens next with such a bespoke construction.

Another plausible scenario is that the costs of maintenance and repair over thirty years come to be far higher than the costs of the initial design and construction.

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A fourth omission is any evidence that the practicalities of this procurement exercise have been thought-through.

For instance, there is no explanation as to why it would not be more cost-effective to refit or to purchase an existing off-the-wharf (ahem) ship and to convert that ship for the envisaged purpose.

Indeed, there is no mention of any business case at all for this specially designed and constructed flagship.

There is also no mention of the role, if any, of private finance – and if there is to be a private sector element, who will bear the risk of any commercial problems.

And this, of all projects, will be too big a project to sink.

There is also no mention of what would happen if (which is conceivable) it would be cost-effective for the ship to be designed by a United Kingdom company but (which is also conceivable) it would not be cost-effective for that ship to be constructed in the United Kingdom.

Could we have a repeat of the (for some) embarrassing ‘blue passports’ situation – where a tender for another prestige Brexit project was awarded to a foreign company?

Although the announcement waxes lyrically about the procurement in that the ‘intention is to build the ship in the UK … help drive a renaissance in the UK’s shipbuilding industry and showcase the best of British engineering around the world’ the government does not know – and cannot know – at this stage whether any value for money tender would result in the ship being constructed in the United Kingdom.

(And as this would seem to be a civil rather than a defence procurement, there are also potential issues about excluding external suppliers from this high-value tender exercise.)

The envisaged timings also seem rather ambitious.

Although carefully worded, this announcement is currently more of a press release than any serious public procurement proposal.

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Finally: £200 million pounds is, for this purpose, not that much – even if whole-life costs are excluded.

Indeed, one could imagine a considerable amount of such a budget being taken up by the to-and-fro of getting instructions and approvals for the design of this bespoke vessel.

Imagine: ‘the prime minister’s office thinks the wallpaper for the main conference room looks too cheap’ and so on.

And the recently reported ‘super-yacht’ of Amazon founder Jeff Bezos is estimated to be costing $500 million – which in sterling would be considerably more than the reported £200 million.

This new flagship may end up being the smallest ship in a harbour, with dot-com billionaires, oil-wealthy rulers and assorted oligarchs waving down at it from their super-duper yachts.

It may well be that to really impress the international business community, we are going to need a bigger boat.

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Prestige public procurement projects often fail – because they are commenced for non-commercial purposes and without thinking foreseeable risks through, and when those foreseeable problems do arise, too much political capital has been invested for the project to then be seen to fail.

The better way, of course, for the United Kingdom to ‘showcase’ here its post-Brexit seriousness about trade and business would be to have a sensible and realistic procurement exercise – including showing that the government is unafraid to pull a project if it does not make commercial sense.

A project that instead ‘showcases’ the commercial ineptitude of the United Kingdom will not help but will hinder our post-Brexit trading future.

But this sort of constructive criticism will be dismissed as doomstering and gloomstering and that voters do not want such negativity.

So those of us who want a more sensible and realistic approach from the United Kingdom to its post-Brexit future are going to need a bigger vote.

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