Category: Brexit

Why we should be worried about the use and abuse of statutory instruments

12th June 2020

In a Financial Times video yesterday I set out some particular concerns about the Coronavirus quarantine regulations, and in earlier posts on this blog I have set out the problems with earlier versions of the Coronavirus restrictions on movement.

This post takes a step back from particular regulations to set out briefly why we should be worried about the government’s use and abuse of statutory instruments.

The phrase “statutory instrument” is odd for someone who is neither an official nor a lawyer: instruments in everyday language are tangible things – musical or surgical instruments.

Statutory instruments are not really tangible things (though they can be printed): they are dull-looking and often dense formal documents.

And putting the word “statutory” in front means you also have the sort of legalistic term that for normal people is a prompt for glazing over and switching off.

Yet statutory instruments are – or can be – troubling things.

Why?

Three reasons: legal effect, lack of effective scrutiny, and governmental convenience. 

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First: legal effect.

As the word statutory tells you they are the law of the land, as much as any Act of Parliament.

In constitutional theory, a statutory instrument should be within the parameters of a parent Act of Parliament.

And again in constitutional theory, a statutory instrument can be challenged in court as outside the scope of that parent Act.

But in practice, the provisions of parent Acts can themselves be very wide and the prospect of any court challenge usually unrealistic.

In effect, if not in technical legal form, they are as much primary legislation as any Act.

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Second: lack of effective scrutiny.

Statutory instruments become the law of the land without any scrutiny (or any real scrutiny).

They are difficult to challenge in parliament and impossible to amend.

They either go through on the nod (the affirmative procedure) or without any nods at all (the negative procedure).

And the sheer number of them means that there is no alternative to this lack of real scrutiny.

The purpose of statutory instruments was historically for there to be a flexible way of legislating on technical issues (as envisaged in parent Acts of Parliament) or to place on a domestic legal basis laws agreed elsewhere (for example under the European Communities Act).

Now statutory instruments, other than a nominal and ceremonial moment in parliament, are effectively legislation by government departments.

Constitutional theory holds that that it is the legislature that legislates and the executive that executes, but the reality is that the executive legislates.

Statutory instruments are in effect executive orders by another name.

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Third: governmental convenience.

Once you have a thing that (a) has the same effect as an Act of Parliament and (b) has none of the inconveniences of actually passing an Act of Parliament, you will tend to get abuse.

The government will have every reason to try to use statutory instruments as much as possible and for as many different things.

And so the recent coronavirus regulations have created the widest criminal offences in modern legal history, potentially criminalising everyone the moment they walk out of their home.

They even purported to criminalise what goes on between consenting adults in their own homes.

These regulations were, at least on their face, significant interferences with fundamental rights.

But they were slipped out without formal announcement and had immediate legal effect.

And because they were under the Public Health Act, there was not even any parliamentary stage before they took effect, ceremonial or otherwise.

The fact that the regulations were as ludicrous as they were illiberal is a happy accident.

Their lack of practical enforceability should only be a relief to the constitutionally gullible. 

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We are so familiar with the comforting notions of the British constitution that we are often blind to what happens in practice.

What we now have is legislation, on an industrial scale, from the executive, sometimes casually interfering with fundamental rights.

The government – ministers and officials – are now in the habit of doing this.

And that is why we should be worried about the use and abuse of statutory instruments.

**

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The extraordinary Sir Simon McDonald “clarification” – a guided tour

22nd April 2020

Yesterday a senior civil servant gave evidence to a select committee.

In that evidence was a fascinating exchange, and it is worth watching carefully.

Later that day, the civil servant sent an extraordinary “clarification”.

https://twitter.com/TomTugendhat/status/1252679936768344070

This is a guided tour of that supposed clarification letter.

One theme of this tour is that the letter is not one would expect from a senior civil servant seeking to clarify something otherwise unclear, and that the letter instead makes the situation far less clear.

The letter also appears to have had more than one author, and it appears that it is a document negotiated between the civil servant and others.

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“EU VENTILATOR PROCUREMENT SCHEME”

The letter has a title, and it is worth noting for what follows that it is about the ventilator scheme. 

“I wanted to clarify a point…”

You may think that the point that was made to the committee was clear, and that its clarity is what caused the political fuss.

(Here it is also worth considering whether the letter was entirely voluntary, or whether the civil servant had insisted on a ministerial direction to write the letter.)

“…the EU’s Ventilator procurement scheme – the Joint Procurement Agreement”

This is where the letter starts becoming (ahem) unclear.

From the title it would seem we are looking at just one of the recent procurement rounds under the joint procurement agreement.

But the addition of the text after the hyphen makes it less clear what is about to be denied in the next paragraph.

“Unfortunately, due to a misunderstanding, I inadvertently and wrongly…”

Anyone who knows about how careful senior civil servants are in drafting formal documents would at this stage affect an Alan Hansen-like face discussing some footballing defensive disaster.

Some would even say that the “due to” is a tell that someone other than the civil servant was involved in drafting this letter (more on this later).

The “misunderstanding” is not stated.

The word “inadvertently” adds nothing to the “misunderstanding” and is surplus.

The word “wrongly” is vague, because it is not clear which of the following propositions is wrong.

And we are not even half way through this sentence.

“…that Ministers were briefed by UKMIS on the EU’s Joint Procurement Agreement scheme and took a political decision not to participate in it”

Something inside this text is “wrong” but it is not clear whether it wrong in part or in full.

The insertion of “by UKMIS” is eye-catching, as it means ministers could have been briefed by others.

And the text does not say Ministers were not aware – and that would have been easier to write.

The reference to “the EU’s Joint Procurement Agreement scheme” is also not clear – the United Kingdom has been a signatory to the agreement since 2014 and is still a signatory following Brexit (now along with fellow non-members Iceland, Norway and Bosnia-Herzegovina) and so the United Kingdom was (and is) already participating in it.

And what does “political decision” mean?

Why not just “decision”?

The longer this letter goes on, the less clear it becomes.

And then the next two sentences are a cracker.

“This is incorrect.”

What is incorrect?

He has already stated something is “wrong” – but surely this is not some sly double-negative?

The preceding sentence is so jumbled and tortured it is not clear what is being negated by “This is incorrect”.

“Ministers were not briefed by our mission in Brussels…”

But could have been briefed by others.

“…about the scheme…”

Which scheme?

The ventilator procurement scheme by itself, or the joint procurement agreement scheme more generally?

“…and a political decision…”

As opposed to another sort of decision?

“…was not taken on whether or not to participate”

Why is this so specific?

Was some other decision taken?

And now we come to the third paragraph of the “clarification”, where things get even more unclear.

“The facts of the situation are as previously set out.”

Where and by whom?

“Owing to…”

So the supposed author does know better than to use “due to” earlier in the letter – hmmmmm.

“…an initial communications problem…”

This is vague in two ways – why “initial” and why no express mention of the supposed email?

A communication between whom?

Between the European Union and the United Kingdom?

Or within the United Kingdom?

“…the United Kingdom did not receive an invitation in time…”

But as part of the decision-making meetings before the procurement, the United Kingdom would have been aware of the procurements.

It would not have had to have waited until the invitation to know about them.

This would be like Mr Bean being surprised when sending himself a Christmas card.

“…to join in four joint COVID EU procurement schemes.”

Notice the subtle switch to the plural – “schemes”.

This letter starts off about the ventilator scheme, then it calls the joint procurement agreement a scheme, and now it is talking about four schemes.

Which scheme does the “political decision” in the proceeding paragraph now refer to?

“As those four initial schemes had already gone out to tender we were unable to take part.”

What does “we were unable to take part” mean here?

Is it limited to the past tense?

Can we take part now?

And how does this accord with other statements about the United Kingdom now taking part?

“The Health Secretary has set out the Government’s position on this going forward.”

The ugly “going forward” indicates that someone else was involved in the drafting of this statement – no senior civil servant would happily use such a phrase in formal correspondence.

But more generally, what does this statement mean – what is the “this” in that sentence?

“…this clarification…”

This letter is the opposite of a clarification.

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Senior civil servants are, like lawyers, wordsmiths.

A formal document, such as a letter to a select committee, should be a considered, structured and coherent composition.

But this letter is all over the place (Alan Hansen wince).

The letter is tortured and awkward, and this indicates that the letter was a negotiated document – and negotiated to the point of strangulation.

The particular sentences may be all correct, but there seems to be gaps between sentences, and other things seem cloaked (especially “scheme”/”schemes”).

The overall letter smacks of evasion and misdirection.

The civil servant’s statement was clear, and this clarification is not.

Something is up here.

**

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Brexit: the end of the beginning

2nd March 2020

If Brexit were a boxset, we are now about the start of season two.

The first season, of course, had a story of its own: a referendum that did not need to be held, leading to a result that was not expected (or anticipated), resulting in a departure on withdrawal terms few positively wanted.

(It is difficult to think that we are still within what would have been the five-year term of the 2015 parliament, where David Cameron had a good Commons majority elected on a manifesto that included a commitment that the United Kingdom be at the heart of the European Union single market.)

Now the United Kingdom is outside the European Union (let alone the single market) as a matter of law, even if the terms of the withdrawal agreement will make it a Brexit in name only until (at least) the end of this year.

Certain elements of the withdrawal agreement – on citizenship, financial contributions, and on a range of technical matters – will endure beyond the transition period.  

Accordingly the threat of “no deal” at the end of this transition period is not as drastic as it would have been had there been no deal for the departure itself.

The scope of issues to be agreed (or at least capable of being agreed) is narrower than before the withdrawal agreement.

What is now to be negotiated (or not) is the future relationship beyond the end of the transition agreement.

One way of following this is by the heady heated excitement of political commentary, where one can form two different views a day (or an hour, if you are on Twitter) on any relevant issue.

And the politics of Brexit are crucial – it is only by understanding the politics of Brexit that you will understand why otherwise incomprehensible decisions are taken and daft unsustainable positions adopted.

But politics is not the only way of understanding Brexit – and a politics-only approach is itself limited and will miss many things.

For along with the pomp and propaganda, there is process.

And the process is about arriving (if possible) at an agreed text.

And a process which is intended to end with an agreed text tends, if the parties are taking it seriously, with a number of preliminary texts.

And it is by having regard to the texts and the process that one can (often) understand where Brexit is going and not going.

Again – form and structure are not everything – but they can provide the situations against which politicians and the media then react.

The two key texts for this negotiation are the negotiation guidelines of the European Union and the United Kingdom’s Command Paper on the those negotiations.

Of course, these are opening positions – but this does not mean they are trivial and can be dismissed.

On the European Union side especially, thought will have gone into what they want to achieve in the final text, and the guidelines will have been compiled by thinking backwards from what they want to achieve with that final text.

And in respect of the withdrawal agreement, early texts of the European Union can be seen as leading directly to final positions.

Remember: this is not the European Union’s first rodeo: they have the valuable experience of negotiations over Grexit, and of association agreements and free trade agreements.

This does not mean they are always right, or that that they will prevail, but to the extent that experience provides an advantage, the European Union will have the benefit.

Against this process-minded approach, there will be the temptation for those supporting the United Kingdom government to adopt again the bluster and silliness that was a feature of the exit negotiations.

Given the membership of the cabinet, that is a real risk.

So it is a relief that the United Kingdom’s Command Paper on the upcoming negotiations is a serious and not a silly document.

And with the two parties prepared (if unevenly) for the negotiations, and as both parties want an agreement (if possible), the second season of the Brexit boxset can begin.

It may well be that the second season will be yet more exciting (and scary) then the first season – but at least we (and the parties) will be ware of how the first season went.

**

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The moral hazard of the United Kingdom casually breaching the Political Declaration

27th February 2020

The Political Declaration is a formal, negotiated document agreed between the United Kingdom and the European Union.

You can see the document here, hosted on the United Kingdom’s own website – all 31 pages of detailed prose, over 141 numbered paragraphs.

It is a serious document, to be taken seriously.

The United Kingdom government says itself on its website:

“The new Political Declaration sets out the framework for the future relationship between the European Union and the United Kingdom and reflects the Government’s ambition to conclude an ambitious, broad, deep and flexible partnership across trade and economic cooperation with the EU, with a free trade agreement with the EU at its core, alongside agreements on security and other areas of cooperation.”

The Political Declaration, however, is not legally binding.

And there is now a suggestion that the United Kingdom government can and should disregard the commitments set out in the Political Declaration.

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There have been, broadly, two responses to the United Kingdom government apparent desire to breach the terms of the Political Declaration.

The first is first is to say that as the Political Declaration is not binding then it does not matter if it is breached, casually or otherwise.

The second is to say that the Political Declaration is a formal and negotiated document, and that it does matter if it is breached.

These two views appear to be be in conflict to the point of contradiction.  

And if they are in conflict then the question becomes which is the better view.

The two responses are not actually in conflict as they are dealing with different things: there is therefore no hard contradiction.

But the better view is that the Political Declaration should be taken seriously – even if it is not binding.

Indeed, that the Political Declaration is not binding makes it more important that the government takes it seriously.

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What does it mean for a formal commitment to be “binding”?

Not all formally negotiated documents are (legally) “binding” – so what is it which gives them this quality.

In general terms “binding” means that there are formal sanctions available in the event of the breach.

These sanctions may not necessarily require the party in breach to specifically perform the commitment.

The sanction may be that the other party can terminate the agreement, or that there is some remedy or benefit for the other party.

But whatever the sanction, the notion is that the agreed commitment can be enforced against the party in breach so that the other party does not suffer the disadvantage of the breach.

Making a commitment (legally) binding is one way of showing that the party undertaking the commitment is being serious.

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In foreign affairs and international politics, however, a preoccupation with whether a formal serious commitment is “binding” or not is in good part a legalistic red herring.

A serious formal commitment is intended to be taken seriously and formally: that is its very point.

And this is regardless of whether it is technically “binding”.

Resiling from an obligation on the technicality that it is not legally binding is not to take such a commitment seriously.

(A useful comparator are the United Kingdom’s pre-Brexit financial commitments to the European Union – there were question marks over whether they were legally binding – how could they be litigated? which court? – but this was not the point: the United Kingdom had made a commitment and was expected to stick to it.)

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All this said, there may be a good reason for a country to depart from a formal serious undertaking.

And both the United Kingdom and the European Union knew that the Political Declaration was not (legally) enforceable.

Both sides accepted it could and would be departed from, in certain circumstances.

The crucial question would be: how and on what basis?

And in this way, the Political Declaration is, in effect, a test for a post-Brexit United Kingdom.

How seriously does the United Kingdom take non-binding commitments and assurances?

Do the words matter?

The less seriously the United Kingdom takes non-binding commitments, the stronger the signal to the European Union that anything important needs to be tied down in strict legal provisions.

This is why the daft posturing of the United Kingdom about casually breaking the the Political Declaration matters.

It matters as much, if not more, than if the Political Declaration was “binding”.

In effect: the Unite Kingdom is sending a signal of “don’t trust us, insist on strict legal obligations”.

And this signal is not just being sent to European Union – the signal is now being broadcast to every nation in world, to all the countries where, post-Brexit, United Kingdom may want to have “trade agreements”.

The United Kingdom may think it is saying to EU “screw you” but in fact it is telling the world “screw us”.

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Brexit was an opportunity for the United Kingdom to show the world how serious it was about having an independent trade policy.

Instead, the United Kingdom keeps showing the world how lacking in seriousness it is in entering international commitments

One day this lesson of moral hazard will be learned – if not by current ministers then it will be understood by future ones.

But that may be too late, as something important will already have been lost, and it will be hard to regain.

The United Kingdom government is still not taking Brexit seriously.

**

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I am hoping to spend less time on Twitter in 2020 as I want to move back into longer-form writing – in particular, examining and commenting on key texts and other developments.

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Two new texts on Brexit

26th February 2020

There are two new important texts of interest to those following Brexit.

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The first are the latest negotiation guidelines of the European Union.

As with the lead-up to the withdrawal agreement, the detail of the European Union’s published position will probably be the best single source for understanding both what will happen next and what the final agreement will look like.

This is not to say that is a complete source: politics and circumstances will make a difference, and there is – as with the exit arrangements – a non-trivial risk of no deal.

But even taking account of such contingencies, the directives are the best place to start.

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The other text is a speech by the United Kingdom negotiator David Frost.

There is a lot in the speech to dismiss – but there are some fascinating passages too.

And the overall importance of the speech is perhaps not  in any of its components but in the very fact of its existence: a serious and no doubt sincere attempt by an official to set out the post-Brexit vision of the United Kingdom government.

This blog will look carefully at both texts in the next few days, as both documents reward careful attention.

**

Thank you for visiting this law and policy blog.

I will be spending less time on Twitter in 2020 as I want to move back into longer-form writing – in particular examining and commenting on key texts and other developments.

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A challenge for those in favour of the United Kingdom joining the European Union

6th February 2020

Here is a challenge for those who support the United Kingdom joining the European Union.

The challenge is: can you forget that the United Kingdom was ever a member?

By this I mean: can you make out the case for the United Kingdom joining the European Union without reference to the fact that the United Kingdom was a member?

Can the case be made out in contemporary, modern terms, as if the United Kingdom had never been a member and (without the United Kingdom’s internal influence from 1973 to 2020) the European Union had evolved to its current state?

This would require putting side arguments about the rights and wrongs of the 2016 referendum, or about the merits or otherwise of various government policies and personnel since the referendum.

In essence: if the United Kingdom had never been a member of the European Union (and its predecessor forms) what would be the case for joining now?

The first reason for posing this challenge is simple: it is unlikely, if not impossible, that (re-)joining will be based on addressing past grievances of Remainers.

There has to be a positive case.

The second reason is to see if there are arguments for joining which cannot also be met by an Association Agreement.

Association Agreements can be in many forms, and in principle there is no reason why one cannot be the basis of a relationship so close as to be practically indistinguishable from membership.

So: what is the positive case for the United Kingdom joining today’s European Union – and is that a case that only full membership can meet?

**

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A tale of two texts – what the United Kingdom should have published yesterday but did not

4th February 2020

Yesterday was the first working day since the United Kingdom formally left the European Union.

The European Union chief negotiator produced draft negotiation guidelines for the next stage of the Brexit process: that is the future relationship agreement between the United Kingdom and the European Union.

You can read the draft here, thirty-three pages of detailed guidelines, which if adopted will shape the next stage of the negotiations.

Back in March-April 2017, after the Article 50 notification, a similar set of guidelines shaped how the European Union approached – and then prevailed in – the withdrawal agreement negotiations.

The European Union negotiators put thought into and prepare for such negotiations: they understand process.

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Yesterday, the United Kingdom government could have published a similar document: say, a draft negotiation document for the Prime Minister to put before Parliament for approval.

There would be no problem with the Prime Minister doing this: he has had the civil service machine at his disposal since summer – plenty of time for the government to know what it wants from the next stage of negotiations, especially as he wants the agreement in place by the end of this year.

And there would be no risk for the Prime Minister in doing this either: unlike his predecessor, he has a majority in the House of Commons and so he could be confident of any such guidelines getting parliamentary approval.

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But the United Kingdom government did not produce similar guidelines.

There was, it must be admitted, a written statement, but it was in such a high-level wish-list form that it would barely qualify as heads of terms for the upcoming negotiation.

The failure of the United Kingdom government to publish a document as detailed as that of the European Union has one obvious explanation, given what happened (and did not happen) between 2016 and 2020.

That explanation is not that the United Kingdom government has some cunning plan that it is keeping close to its chest.

The obvious explanation for the United Kingdom government not publishing a document as detailed as that of the European Union is that it has (currently) no proposals as detailed as those of the European Union.

As in 2016-2020, the United Kingdom does not have a clue in practical or detailed terms what to do next.

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There was, however, a significant text published yesterday – the first working day of Brexit – by the United Kingdom government.

This was the tub-thumping speech of the Prime Minister about free trade.

A speech that did not mention Brexit once.

A speech so full of cod-economics and cod-history that it would make an A-level student blush.

A speech that was an exercise in whimsical nostalgia, rich in superficial cleverness.

A speech you would expect from the eternal essay-crisis examination-crammers of this witless winging-it government.

This was the first blast of the United Kingdom government’s trumpet on its first working day of supposed liberation.

There could have been no more telling contrast to the detailed European Union proposals published the same day.

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Any sensible person wants these negotiations to go well, and as a United Kingdom citizen and resident I want these negotiations to go well for the United Kingdom.

Nothing here is a cheer for the European Union, who are now to us as much of a “third” entity as we are to them.

But one does not do well in negotiations (or any bilateral exercise) by not understanding counter parties or opponents.

The United Kingdom government should be meeting detail with detail, process with process.

There is certainly no excuse not to realise this, given the hard experience of the exit negotiations.

And the United Kingdom government can do detail and process when it wants to do: after all, the European Union’s single market is itself a triumph of British pragmatism and planning.

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At some point, it will become painfully obvious that yet more flag waving and bombast will not be enough.

(And anyone with a decent grasp of history will tell you that flag waving and bombast was certainly not enough in those supposedly glorious Elizabethan, Victorian and World War II times beloved of Brexiteers: drudgery and attention to detail always mattered.)

The two texts of the first working day of Brexit – the European Union detailed proposals and the Prime Minister’s Greenwich speech – are the first two moves for the next phase.

And one shows serious preparation for what happens next, and the other shows none at all.

**

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The hidden wiring of Brexit is keeping Brexiters safe from falling

3rd February 2020

Today – Monday – is the first working day since the United Kingdom departed the European Union.

Since Friday, when the departure took effect, there have been some expressions of glee from Brexiter politicians about the lack of any immediate adverse effect.

Here is Daniel Hannan, a former Member of the European Parliament.

As of today his tweet has been retweeted 3,400 times and liked 16,100 times.

And here is Douglas Carswell, a former Member of Parliament at Westminster.

https://twitter.com/DouglasCarswell/status/1223719131851128845

Hannan and Carswell have long been a political double-act.

Their extended pamphlet The Plan of 2008 is probably the most significant publication from the Right in the last fifteen years, pointing out directions in which United Kingdom politics then went.

And both have long been sincere and focused opponents of the United Kingdom being in the European Union, with Carswell even giving up his Conservative seat and daring to fight (and winning) a by-election for UKIP.

Both are intelligent and know the details of how Brexit has finally happened.

So these tweets come as a disappointment.

Both Hannan and Carswell know why the various events they describe have not come to pass.

There has been little practical change because the United Kingdom and the European Union entered into a Withdrawal Agreement which provided for transitional arrangements that will continue until (at least) 31st December 2020.

The warnings about “No Deal” Brexit were about just that: what would happen if there was no exit deal.

But there was a Brexit deal.

Hannan, as a departing Member of the European Parliament, voted for the withdrawal agreement on 29th January (see page 10 here).

Carswell spent the days around the United Kingdom parliament approving the withdrawal agreement boasting of how similar the withdrawal legislation was to an earlier effort of his own.

It is not that both should know better: both know exactly what the withdrawal agreement provides for.

They both know that the reason the things in their tweets have not happened is because of the withdrawal arrangements.

Yet both tweeted otherwise, presumably because the RTs and likes and the sheer fun of triggering opponents is worth more than being intellectually honest.

But the sight is of two politicians flapping their arms as they jump off some platform, shouting “look, we can fly, we can fly, look this is so easy”.

While anyone who cares can see the hidden wiring holding them in the air.

That hidden wiring may not always be there.

**

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The discharge of the mandate – the real significance of Brexit Day, 31st January 2020

31st January 2020

Today is the last day of the United Kingdom being a member state of the European Union – at least for some time, if not forever.

That said, there is remarkably little that will change immediately.

This is thanks to the selfless and deft actions of many Members of Parliament – many of whom no longer have seats – in ensuring the United Kingdom averted a “no deal” Brexit.

Because of elaborate withdrawal arrangements – the hidden wiring of Brexit – there will be substantial continuity until at least 31st December 2020.

This hidden wiring will allow Brexit supporters to revel in the lack of immediate adverse effects – even though many Brexit supporters opposed the withdrawal arrangements as long as possible.

In a way, they have managed to have their cakes and to eat them.

But the lack of sudden drama does not rob today of all significance.

For today is the day when the referendum mandate is discharged, and things can start afresh

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The referendum question back in June 2016 was:

“Should the United Kingdom remain a member of the European Union or leave the European Union?”

And at 11pm today, local time, the United Kingdom will leave the European Union.

Of course, some Brexiters insist there is a lot more to the mandate than the simple question of membership: taking back control of money, laws, borders, and so on.

But such things must be written in invisible ink, because the referendum question does not expressly include them.

The referendum question as posed was on membership alone.

And at the end of today the United Kingdom will no longer be a member.

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There are those – perhaps they are already typing comments below – who will dispute that the referendum was capable of giving rise to a mandate, or will aver that the mandate was invalid because of corruption and illegalities.

As a “mandate” here is a political rather than a legal concept, this is an argument without end – and it is now an argument without any point.

To the extent that there was doubt as to the political validity of the 2016 referendum the December 2019 general election result has settled the matter.

No doubt, like a Civil War re-enactment society, there will be those who sill want to re-fight – even re-litigate – the 2016 referendum.

But to those it must be said there are real political battles – battles the outcomes of which are very much up for grabs – ahead.

There is now a clean battlefield.

And that is because the mandate has been discharged.

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When a mandate has been discharged, it comes to an end.

The thing which was mandated has been done, the mandatory order is fulfilled.

And when a mandate comes to an end, it has no further purchase.

The United Kingdom’s future as not a member state of the European Union is capable of  having many shapes and forms.

The only requirement is that the United Kingdom not be a member state of the European Union.

These outcomes can range from the united Kingdom becoming the North Korea of the North Sea…

…to a relationship so close to the European Union that, but for the technical legalistic question of actual membership, is remarkably similar to the current position – even on freedom of movement.

And between these two positions are an infinite number of other possible arrangements.

The referendum result, in and of itself, does not rule out any one of these non-membership outcomes.

*

Here the speech this week of Michel Barnier is the most important development of the week – other than the fact of departure.

The EU is proposing an Association Agreement – which means common institutions and processes.

And because of Boris Johnson’s insistence on there being a relationship deal in place by the end of this year, the case for such an agreement is compelling – as it will remove the need for bespoke co-decision, monitoring and enforcement mechanisms for different areas.

Every regulatory and structural issue can then be handled within the Association Agreement’s framework.

And in turn the structure, institutions and processes of the Association Agreement can then provide a sustainable basis for a long-term relationship between the United Kingdom and European Union.

(A relationship that can endure until and unless a later political generation ever has an undisputed mandate for the United Kingdom to rejoin.)

Nothing here should be a shock – for all this is set out in the Political Declaration , accompanying the Withdrawal Agreement.

And the embryonic institutional apparatus is provided for in the Withdrawal Agreement.

Both of which have been endorsed by by the government and its Brexit supporters.

(Though they may not have read and understood what they were signing up for, as with the earlier joint declaration.)

Of course, there is no inherent reason why at the end of this year the Withdrawal Agreement will morph seamlessly into an Association Agreement.

But there is no inherent reason why it will not either.

Both outcomes are now perfectly possible, as are many others.

And that is because today the mandate has been discharged, and things can start afresh.

**

Thank you for visiting this law and policy blog.

I will be spending less time on Twitter in 2020 as I want to move back into longer-form writing.

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Brexit, public procurement, and Dominic Cummings

9th January 2020

Yesterday on the Financial Times website is a post by me on the Prime Minister’s adviser Dominic Cummings’ approach to public procurement (set out most fully here).

Articles for the FT and any other mainstream media site have to be a certain length and in a certain style – but here I can add more background and explain more fully what this is about and why it (probably) matters.

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To start with: what is public procurement?

One good way of understanding public procurement is the difference it makes to what public authorities can and cannot do, compared with what private individuals and companies can and cannot do.

A private individual or a private sector company can – at least in theory – contract with whoever they want, subject to the general law of the land.

A private individual or private sector company seeking a supplier is not generally obliged to hold competitions, to advertise, or even contract with the lowest or most economical seller.

(Yes, there are various laws against racial and sexual discrimination, and so on – but the commercial aspects of the bargain are largely unregulated for private entities.)

In essence, a private individual or a private sector company is free to make a bad bargain, and to pick and choose its suppliers as they wish.

*

And, but for the law of public procurement, the same would be the general position for public bodies, subject to their general legal power (or “vires” as lawyers would call it).

But public bodies are not generally free to make a bad bargain, or to pick and choose its suppliers as they wish.

Public bodies cannot just hire and fire suppliers as they wish.

The law of public procurement instead regulates what public bodies can and cannot do when they are making purchasing decisions – whether for goods, services, or grand development projects – from paper clips to aircraft carriers.

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Public procurement is about process – the principles and procedures public bodies must follow when making purchasing decisions.

The principles are broad and apply to all purchases, while the detailed procedures – set out in long regulations – are usually for high-value purchases.

The principles of public procurement are straightforward and commendable.

Purchasing authorities must advertise and specify what they want; they must set out and follow a transparent process; they must apply evaluation criteria consistently; they must treat tenderers equally and must not discriminate in favour of incumbent suppliers or national champions; and, in the event the public body fails to accord with such principles, the disappointed tenderers must have a remedy.

Much of the applicable law for these principles comes from the European Union.

This is because the law of public procurement is as much a part of the EU Single Market as competition law or the law regulating State aid.

Public contracts are lucrative, and so the markets for those contracts should be opened up to all potential suppliers, especially those from outside the member state.

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Described in the way above, the law of public procurement is a Good Thing.

Who could possibly be against?

Well.

There is a difference between neat theory and messy reality.

In practice, the law of public procurement (at least for high-value contracts) is not only subject to these broad, sensible principles but also prescriptive codes set out in pages and pages of regulations, paragraph after paragraph, sub-paragraph after sub-paragraph.

These regulations convert any major purchasing decision into an elaborate, lengthy administrative process.

And this thereby means that purchasing decisions are (or seem to be) often captured by process.

And as tender exercises are expensive and time-consuming, they in turn tend (no pun intended) to be dominated by large specialist companies who can afford to sink months (even years) of time and thousands of pounds on each bid, without any guarantee of success.

Often the suppliers assume that they will lose more of these bids than they will win, and their commercial models reflect this.

And when they win, they can then sub-contract the work anyway.

Small and medium sized enterprises (SMEs) do not have a real hope of winning these tenders – as any long tender process is a huge burden, with a great deal of work without the prospect of any payment.

For SMEs to bid for such contracts routinely is impossible.

And the public sector bodies will not have any problem will this: there is a process to follow, and they have no costs pressures for the process to be any speedier or cheaper for anyone else.

Some public procurement exercises are conducted at the most leisurely of paces, without any thought for the commercial burden this places on potential suppliers.

The result is, in practice, a cosy, settled relationship, with the same small group of suppliers bidding for each high-value contract.

There will also be familiar faces: the same procurement professionals on both sides, meeting again and again, and then swapping sides as those with experience of purchasing for public authorities become valuable recruits for the suppliers.

There is, at least in my experience as a former government public procurement lawyer, a problem here.

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But it also can be said that the law of public procurement, like democracy, is the worst system, apart from all the others.

While the law of public procurement is over-prescriptive and uncommercial, a sudden abolition of the law of public procurement would create even more problems.

Without a law of public procurement, there would probably be even fewer tenders.

Settled incumbents would seek extensions and amendments, and officials would nod-along as this would be the path of last resistance.

For all its manifest faults, the law of public procurement does force public authorities to specify and openly advertise its requirements, and it ensures that the risk of a disappointed tenderer challenging a decision means that a process is followed as consistently and transparently as possible.

There is not even any legal requirement on public authorities to go for the lowest price, as it is open to set price against other factors for the most economically advantageous tender (or “MEAT” – yes, public procurement is a MEAT market).

Yes: at the margins, the approach promoted by Dominic Cummings, of appointing brilliant and charismatic project managers to hire and fire suppliers, could achieve some brilliant outcomes.

But for the mundane reality of the thousands of purchases public bodies make each day, there is the case that the law of public procurement ensures a bad situation is not as bad as it could otherwise be.

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So what can be done?

As a former central government public procurement lawyer (and I still practise in the area), there seems to me to two things which could be done to improve public procurement.

One before the public procurement exercise begins, and the other more-or-less comes afterwards.

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Before major procurements, there is a tendency of officials (and politicians) to over-specify and to set “bespoke” specifications (often called, without irony, “solutions”.

For major IT projects, for example, the specifications can seem like a flip chart of the inane “brainstorming” you get at one of those dire team “away days”.

(Shudder.)

The focus, of course, should be on commercially off-the-shelf products where possible, and on systems which have already been tried and tested.

For, believe it or not, public sector bodies are not the only large entities that procure complex works and services.

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And then we come to the contracts – the “terms and conditions”.

(Oh dear.)

Many of the supposed public procurement disasters – from PFI to superfluous aircraft carriers – are not directly down to the process followed but to the contracts signed at the end.

A contract, of course, is a legal instrument that regulates foreseeable risks for parties in a transaction.  

But for many major government suppliers the contract is not used to regulate risk but to eliminate it.

To make sure that the supplier gets the benefit of the contract price regardless of performance.

Hence the penalty payments, early cancellation fees, change control procedures, and so on.

What is distasteful about this is that government suppliers already have the happy benefit of the public bodies being reliable payers.

Public bodies rarely default on contract payments.

But government suppliers, and their lawyers, want more – and go through contracts seeking every possible amendment so as to free the supplier from any risk.

And they often get away with this for two reasons.

First, public bodies sometimes do not have access to experienced and skilled commercial lawyers capable of seeing the implications of often innocent-seeming provisions.

Such contract lawyers tend to work in the private sector.

Second, suppliers use what leverage they have – knowing that certain projects are politically driven and “too big to fail” – so as to insist on contractual protections.

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The law of public contracts and public procurement can be improved – and Cummings and others are right to highlight its many problems.

But more important than wiping away procedures (even if they are far too prescriptive) is more transparency and better legal advice.

This, of course, is anathema, to Cummings, who dislikes both lawyers and freedom of information.

Nonetheless, if public bodies were to publish all public contracts after they were let – and no cynical hiding behind “commercial confidentiality” – then suppliers would be less relaxed about going for one-sided contracts.

As this is about public money, and as suppliers get the benefit of reliable payment, there is no good reason for non-disclosure.

Public bodies should also be stricter as to the burdens that lengthy procurement exercises place on suppliers, so as to avoid SMEs being squeezed out by the conglomerates.

And public bodies should be under a positive obligation to set out publicly the worst case scenarios of contracts (penalty payments, early cancellation fees, change control procedures, and so on) before any contract is signed.

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As the UK leaves the EU, there is a case that the law of public procurement can be reformed.

The crucial principles of equal treatment and transparency need not be threatened by this.

Nonetheless, some public procurement regime will be required if the UK is serious about entering into post-Brexit international trade agreements – as access to lucrative UK public contracts are among the most valuable things the UK can offer in trade negotiations.

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The law of public procurement can be less detailed and prescriptive, as Cummings as others aver.

But this will not solve all the problems.

As I conclude in the FT piece, Cummings has not fully set out the specification of the problem, let alone procured a solution.

**

Thank you for visiting this law and policy blog.

I will be spending less time on Twitter in 2020 as I want to move back into longer-form writing.

If you value this free-to-read and independent constitutional, legal and policy commentary, you can follow and support this blog by:

  • subscribing to this blog, there is subscription box above (on an internet browser) or on a pulldown list (on mobile); 
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**

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