How to treat the parliamentary evidence today from Dominic Cummings

26th May 2021

Dominic Cummings, the former assistant to the prime minister excites strong opinions – and it is difficult to escape those strong opinions when you write or think about him.

But the attempt should be made – as what he had to say at today’s remarkable parliamentary committee hearing may or may not be important.

The approach I would recommend is as follows:-

First – avoid confirmation bias – especially when it is from an unexpected source.

Many of the things he said confirm the prejudices of those critical of the current government generally and the prime minister in particular – and there was glee to hear him, of all people, say these things.

You should be especially wary of things which affirm what you think must be true.

Second – be aware of the selective nature of the evidence.

For example – some ministers were damned, but other ministers – such as the chancellor responsible for ‘eat out to help out’ and uncertainty over furlough payments – were not criticised

Nor was the cabinet office minister blamed for any difficulty in his department.

If this was a general critique of ministerial competence then it was lopsided – and almost vindictive.

Third – be aware also of motivation.

The former assistant to the prime minister wants, of course, to be vindicated – not least because of the Barnard Castle tarnish.

He has an understandable desire to have been right all along – and his failures only being that he did not do more sooner.

And fourth – there is the issue of honesty.

The former assistant to the prime minister once admitted that the £350million-a-week promise for the NHS was a convenient lie.

He was also one of those ministers and advisers who could not and did not sign the statement of truth (under pain of perjury) about the true reason for the prorogation – and it was the lack of such a witness statement that meant the government lost the case in the supreme court.

Indeed, the fact that if he said something untrue today may have been a contempt of parliament holds no fear for him – as he already has been held in contempt of parliament and with no consequences.

It was a win-win situation today from his perspective – he could take the benefit of absolute parliamentary privilege to make serious allegations, but with none of the sanctions for that benefit being misused.

Nonetheless, a lot of what he said ‘rang true’ – and it may be that there will be evidence that substantiates his many general and detailed claims of wrongdoing by others – some of which are highly serious.

And nothing he said should be dismissed out-of-hand just because he was the one who said it.

Everything he said may be true.

But everything he said, for the four reasons above, needs to be corroborated.

Today was great political theatre – but more is needed before any reliance can be placed upon this great political performance.

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Why public inquiries are often an admission that the other elements of the State have failed

2nd May 2021

It is a familiar routine.

Something horrible has happened and somebody is to blame, and so the demand is made that there is a public inquiry.

There is nothing wrong with this demand.

Indeed, this blog yesterday averred that the the inquiry into the Post Office scandal should be placed on a formal basis, with powers to compel evidence.

Similarly, all sensible people want an inquiry started as soon as possible into the government’s handling of the coronavirus pandemic.

There are also many other subjects that would benefit from the focus and dedication of a public inquiry.

But.

Many public inquiries, and most demands for public inquiries, are also implicit admissions of failure.

The admission of failure is that the other elements of the state – primarily the executive, the legislature, and the judiciary – have failed in their roles.

That there has been insufficient control and transparency within the government, and/or that there has been insufficient scrutiny by or accountability to parliament, and/or a sense of general injustice lingering after attempts to litigate specific matters in the courts.

Of course, there are certain discrete issues where inquiries are appropriate and do work which could not have been done otherwise – for example, the Cullen inquiries.

But if the other elements of the state had performed their proper constitutional functions, key issues of transparency and accountability – that are the stuff of many inquiries, and of most demands for them – could be addressed more directly and immediately by elected politicians.

This, I know, is wishful thinking and no doubt the counsel of constitutional perfection – yet each demand for an inquiry is, like the ringing of a bell, often an indication of wider state failure.

Politicians are comforted and protected by this habit of thought – as they can say and nod solemnly that there should be (or may be) an inquiry whenever something goes wrong.

Lessons will be given and then learned by having an inquiry – but we will never learn the lesson that perhaps we should be catching problems at an earlier stage of the political process.

How can we shift exercises in transparency and accountability back to earlier in the political process?

To be dealt with parliamentarians, holding the executive to proper account?

There is no easy and obvious answer.

Perhaps we should have an inquiry…

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The ugly scenes from the Clapham Common protest tell us about wider policing problems – and how policing the coronavirus regulations is being treated as a public order matter instead of a public health problem

14th March 2021

The scenes of the policing of the protest at Clapham Common last night were ugly.

The scenes were also shocking.

By ‘shocking’ I do not mean that they were surprising and unpredictable. 

Anyone with any awareness of policing in Northern Ireland, or of the miners strike, or of inner cities and BAME communities, will not be surprised.

This is what police do – when they can get away with it.

Something can be unsurprising and predictable and still be shocking – as anyone who has licked a light socket would tell you, if they are still able to do so.

And police brutality – and their other abuses of coercive power – should always be shocking.

Once it ceases to shock then the authoritarians and illiberals will have prevailed.

*

During this pandemic this tendency for the police to misuse and abuse their powers has had a further feature.

The coronavirus regulations – which restrict freedom of movement and assembly as well as other fundamental rights and freedoms – are public health measures.

But they have been enforced by the police as if they were in respect of public order.

Public health is not the same as public order.

The scenes from last night did not evidence any sincere concern for public health from the police.

Indeed – a responsible and socially distanced protest was entirely possible (and warranted) – but the police turned it into something else instead.

*

These ugly scenes were then followed by ugly evasions.

Reading that ugly statement is as sickening as the scenes from the protest were ugly and shocking.

‘Look at what you made us do,’ is – in the circumstances of this protest that was prompted by the death of Sarah Everard – an especially unfortunate stance for the police to take.

Even former home office ministers – not the most liberal of politicians – were not able to stomach this.

*

And in command of the metropolitan police is, of course, Cressida Dick.

How the career of Cressida Dick even survived the killing of Jean Charles de Menezes is one of wonders of recent policing history.

How her career then continued to prosper is one of its deepest disgraces.

But the police are very good indeed at deflection.

Any criticism is usually first met by being told that one does not understand the pressures of policing, and so on.

And when the wrongs are established beyond doubt, the police effortlessly switch to their bland lessons-will-be-learned assurances.

But at no point will there even be any genuine accountability and redress.

Which is kind of ironic given that the police are, well, charged with the policing the rest of us and holding us to account.

*

This is not the sort of blog to comment on ongoing individual criminal cases – and this is not just because of the (outdated and inadequate) laws on contempt of court but instead because a blog is not a court room and serves a different purpose.

One purpose of this blog is to identify and explain the wider law and policy contexts of topical events.

The ugly scenes from last night can be seen as an example of police abuses of power generally and in respect of their illiberal and misconceived approach to the coronavirus regulations in particular.

The ugly doubling-down of the police this morning can, in turn, be seen as an example of their inability ever to accept that they have made operational mistakes.

And there are few – if any – official communications as misleading if not dishonest as the police PR after something has gone very wrong.

Shocking – but never surprising.

***

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The issue with vaccine certification – or ‘vaccine passports’ – is not that they are discriminatory – as all certification is discriminatory, if you think about it

1st March 2021

Over at the Financial Times I have a piece today on ‘vaccine passports’ – that is, a system of certification that a person has or has not had the coronavirus vaccine.

That article demonstrates my weakness as a commentator in the traditional media sense, as on this subject I do not happen to have strong views either way.

I do not have an ‘angle’ that will (conveniently) last from between 800 to 1100 words – no ultimate position that I am arguing for and articulating on your behalf for your claps and cheers.

Instead, on this policy (as on many others) I can only see difficulties – and difficult choices.

And these difficulties are, in turn, because of the very nature of certification.

All certification is discriminatory – that is its very point.

Certification enables (or should enable) a state of affairs to be asserted in a manner that then allows a decision-maker to make one decision instead of another.

That is: to discriminate.

The problem is not with discrimination in and of itself.

The problem is when that discrimination is unfair – either directly or indirectly.

Accordingly, it is not a complete answer to the proposal of any form of certification to dismiss it as discriminatory.

For all you are then saying is that a system of certification is acting, well, as a system of certification should.

The more important questions are whether that a policy of certificates would be reliable – and, if reliable, whether the benefits will outweigh the costs and whether it will not create unwanted inequalities, either directly or indirectly.

These are problematic things to consider – and for which there may not be an easy solutions – and in respect of which difficult choices will need to be made.

And to point such things out is a purpose of law and policy commentary.

Not all commentary is cheerleading for one position or the other.

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The real significance of the government’s defeat over transparency in public procurement – yes, the claimants overstated their case, but reaction of the government was extraordinary

22nd February 2021

 

Last week the high court held that the government of the United Kingdom had acted unlawfully in respect of certain contracts awarded during the pandemic.

The judgment is here.

In particular, the high court held that there had been a failure by the government to publish contract award notices within the appropriate time.

It is a significant case – even though the government sought to brush off the claim as ‘academic’.

And the significance of the case is also not quite what the claimants initially made it out to be when making the claim, and the claimants lost on their more eye-catching assertions.

In particular, the claimants failed to show there was a ‘systematic’ policy put in place of widespread non-compliance with the publication obligations, and nor did the claimants show that there was a deliberate policy to ‘de-prioritise’ compliance. 

They – and you – may believe that to be the case – but they could not show this to the court.

All the claimants could demonstrate to the court was that there was non-compliance by the government with the mandatory deadlines – which the government could not and did not deny.

(The government asserted that they were only ‘technical breaches’.)

In respect of this undeniable (and not denied) non-compliance, it was a difficult case for the claimants to lose in the event that it proceeded to a court hearing.

The legal equivalent of a good shot on goal.

And as the case did proceed to a court hearing, the claimants won on the issue of non-compliance – though they did not get the remedy they primarily wanted (and almost did not get a remedy at all).

The curious thing is not so much why the claimants won – there had been a breach that could not be denied – but why the government resisted the claim all the way to the high court (spending over two hundred thousand pound in legal fees).

Had the government simply admitted the breaches – but denied that the breaches were the result of any systemic and deliberate policy – and undertaken to publish the notices as soon as possible, then it would have been highly unlikely that the claim would have proceeded to a full hearing.

But the government did not, and so the claim did.

Something rather strange has gone on.

*

In this post I now set out the elements of the case, as can be identified from the content of the judgment.

I will then set out what the case was – and was not – about.

But before we get to the judgment, we need to first understand the purpose of the contract award notices and why it matters that they were not published in time.

*

‘Public procurement’ is the term used to describe the purchase by public authorities of goods and services from the private sector.

For various reasons, public procurement is subject to special legal rules that are in addition to (and sometimes qualify) the general law of contract.

In essence, the special laws of public procurement are about procedure: that is, what a public body has to do (and cannot do) when going about awarding a ‘public contract’.

And if that public body does not comply with those legal rules then a court can determine that it has acted unlawfully.

What then happens depends on the nature of the breach and the practical use of any remedy.

A court may compensate a wronged bidder for a contract, or it can issue a mandatory order that a public body do something (or not do something) in particular.

Or a court may just declare the correct legal position.

Or if there is nothing to be done, then a court may do nothing at all.

(For more on what it means, and what it does not mean, for a court to hold that a public body has acted unlawfully, see my post yesterday.)

*

One of the reasons there is a special legal regime for public procurements is the need for transparency.

Transparency is a fundamental principle in the law of public procurement.

All sorts of things need to be published by public authorities (and some public utilities) when purchasing goods and services that would not need to be published by a private corporations making similar transactions.

In routine public procurement the principle of transparency is met by the publication, for example, of specifications and contract values, and of details of the procurement exercises to be followed and of the criteria to be applied.

Thousands and thousands of pages of this dry information are published every day: the dullest legal prose on the planet outside of a tax code or a trade agreement schedule.

Dull – but necessary and a public good.

And one of the things that should be published are contract award notices.

*

A contract award notice is not, itself, legally that significant.

The parties to the tender exercise – the winners and (any) losers – will already have been notified of the contract award – and an aggrieved loser can bring a challenge if it acts promptly.

The purpose of the contact award notice is not for the benefit of the bidders and does not trigger or limit their rights.

The purpose of the contract award notice is for the benefit of the public

Contract award notices tell us which contracts have been awarded and for how much and so on.

Contract award notices also will alert investigatory bodies such as the National Audit Office to possible problems.

The alternative to a contract award notice is that nobody outside the government and any bidders would ever know what contracts had been awarded.

And so although contract award notices may not be legally that important – in that they do not trigger rights and so on – they are politically important.

Contract award notices are part of the tribute that public procurement pays to the principle of transparency.

And the need for transparency in the award of public contracts is a fundamental reason why we have special rules for public procurement in the first place.

*

This need for the publication of contract award notices is all the more important when there has not been any advertisement or other publicity for the award of high-value contracts.

For in an emergency a public authority can dispense with a formal procurement process.

This is provided for in the United Kingdom by regulation 32 of the Public Contracts Regulations 2015:

The government has relied on this regulation 32(2)(c) exemption for a high number of pandemic-related contracts.

Few sensible people would object – as such emergency provisions exist for emergencies, and this was an emergency.

The flexibility is built into the system.

But.

Although the need for prior publications can be relaxed under regulation 32, this does not mean that the need for subsequent publication is relaxed too.

Indeed, such notices become crucial, so that the public may know what is (and is not) being done.

*

Contract award notices are provided for under regulation 50 of the Public Contracts Regulations.

You will see that the regulation is one of a number of provisions dealing with transparency:

The relevant part of the regulation is regulation 50(1):There are some exceptions to this thirty day publication obligation (for example, national security) – but the government did not seek to rely on those exceptions in the coronavirus procurements.

So although regulation 32 allowed the government to dispense with prior publication about public contract the government still had to comply with the regulation 50 obligation once the contracts had been awarded.

And in a substantial number of instances, the government did not do so.

*

The judgment sets out the extent of the government’s failure to publish contract award notices in accordance with regulation 50:Note that this was set out in the government’s own witness statement.

(The mentions to the ‘policy’ are to a formal government policy on publications that was also breached – but for the purposes of this post, the policy adds nothing.)

Given that there was a legal rule that applied, and given that the government did not comply with it, then the only result is to conclude that the government had acted unlawfully.

There was no other outcome available to a competent court.

The wider (wilder?) claims of the claimants were found wanting: no probative evidence was before the court on this non-compliance being directed and cynical.

Of course, one may have suspicions and may regard those taking the government’s version of events at face value as naive.

But suspicions are not evidence, let alone proof, and the claimants’ assertion that the policy of delayed publication was part of a deliberate system fell flat in the (virtual) court room.

*

What also did not get traction was the claimants’ demand for a mandatory order – an order of the court to the government to comply with regulation 50 under pain of contempt of court.

And the reason why such an order was not made was because it was, by the time of the hearing, unnecessary.

The government had published the notices, although out of time.

Perhaps this late activity was because of this litigation.

Perhaps it was because, as the government’s evidence detailed, there were now more resources in place for such tasks.

But whatever the explanation: there was nothing left for a mandatory order to do – and so such an order was not made.

All that the court could do positively was to exercise its discretion to make a declaration that the law had been broken – and that is what the court did, though refusing to use words like ‘systemic’ as requested by the claimants.

But any declaration by a court is discretionary and it may well not have been made.

*

So this is case about non-compliance with a statutory deadline, which the government did not deny, and that had been remedied by the time of the hearing of the court.

And once at court, not a difficult case for the claimants to win.

So – and this is the curious question – why did this case ever get to court?

Why?

Here paragraph 153 of the judgment is fascinating.

(It is too long to screengrab or quote here – so click and read it here.)

For although the claimants undoubtedly overstated their case, the government’s reaction was extraordinary.

The government sought to claim that there was a special species of ‘technical breaches’ that were not really legal breaches at all.

The government also resisted until the very last moment any admissions as to what had happened.

The claimants may have had a free run at goal – but the government managed to intervene and score an own goal anyway.

If Alan Hansen were a legal commentator, one could imagine him wincing at almost every sub-paragraph of paragraph 153 of the judgment.

What on Earth was happening?

One can be fairly sure the fault is not with the government lawyers – their internal advice would have been much as I have averred above – to acknowledge a problem and to undertake to put it right.

(And the judge himself in this case was an experienced barrister in such public law matters – that is how he can set out the details in paragraph 153 in such a – well – systemic way.)

Someone in government insisted that this case went all the way to court – at the cost of over two hundred thousand pounds.

There may not have been a deliberate policy of delaying contract award notices – but there seems there was a deliberate decision to delay admitting that there had been legal breaches.

The claimants deserve some criticism for overstating their case without direct evidence.

Yet that overstatement is as nothing to the remarkable decision by the government to defend the legally indefensible at every step up to a high court hearing.

Perhaps this was a strategic decision by the government, in view of the other cases brought to challenge particular public procurement decisions, as opposed to this general challenge.

The government may well have nothing to hide – but it is certainly conducting its litigation as if it has.

*

The last word will be with the judge, who in paragraph 140 of the judgment summarises the fundamental problem presented by this case (which I have broken into smaller paragraphs for flow):

‘The obligations imposed by reg. 50 and by the Transparency Policy and Principles serve a vital public function and that function was no less important during a pandemic.

‘The Secretary of State spent vast quantities of public money on pandemic-related procurements during 2020.

‘The public were entitled see who this money was going to, what it was being spent on and how the relevant contracts were awarded.

‘This was important not only so that competitors of those awarded contracts could understand whether the obligations owed to them under the PCR 2015 had been breached, but also so that oversight bodies such as the NAO, as well as Parliament and the public, could scrutinise and ask questions about this expenditure. By answering such questions, the Government “builds public trust and public confidence in public services”: see §1 of the Transparency Principles.

‘One unfortunate consequence of non-compliance with the transparency obligations (both for the public and for the Government) is that people can start to harbour suspicions of improper conduct, which may turn out to be unfounded.’

Or they may not be.

And that is why transparency is important.

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What the AstraZeneca agreement actually says

31st January 2021

Was AstraZeneca under a firm obligation to supply the vaccine to the European Commission or was it only under an obligation to use its best efforts?

Only the agreement would tell us for certain.

And a few days ago it did not look like that politically controversial vaccine agreement between the European Commission and AstraZeneca was going to be published.

So, in that circumstance, this blog had a post which, on the basis of public domain information then available – including a published (and redacted) contract with another supplier – sought to put together what might be said about the AstraZeneca agreement.

That post is now superseded, for the AstraZeneca agreement has now been published, though in redacted form.

What this now-published agreement tells us, even more than before, is that AstraZeneca may have been wronged in the political row with the European Commission.

For, just as the European Commission was wrong in invoking article 16 (though that was promptly reversed), it looks as if it was also wrong in how it publicly characterised the contractual obligations of AstraZeneca.

*

Before we get going, some assumptions and provisos.

The AstraZeneca agreement is under the law of Belgium and is subject to the jurisdiction of the courts of Brussels – and I am not a Belgian lawyer.

This means there will be law relevant to the understanding of the agreement of which I will be unaware.

But as I am not providing legal advice but instead mere commentary on an English language legal instrument in the public domain, the fact that the document is under foreign law is not an absolute barrier – though please bear in mind this limitation.

The agreement is also redacted, and there may also be other legal instruments or texts that may be relevant, and so this post is on the basis of the information which is available at the time of writing.

I am also aware that there are versions of the agreement on the internet which purport to show the redacted text but I have not looked at any of these and I respect the confidentiality of the parties: this post is on the basis of the text published by the European Commission.

What follows is an account of what the AstraZeneca agreement says by an English legal commentator with some experience as a lawyer in commercial contracts and public procurement matters.

*

First, the parties.

The agreement is between the European Commission, acting on behalf of European Union member states, and AstraZeneca AB, incorporated in Sweden.

That this is the AstraZeneca entity that is party to the agreement may be significant, for (all other things being equal) only that entity will be bound by obligations on AstraZeneca in the agreement – and not any other AstraZeneca entity.

As we will see, this possible distinction may be important (or at least of interest) depending on which AstraZeneca entity is party to the prior agreement for the supply of the vaccine in the United Kingdom.

*

Moving on from the parties, we come next to the recitals.

Recitals are curious things in legal instruments – and tend to be far more popular (and numerous) in continental Europe than in England.

(Some European Union legal instruments have recitals that go on for longer than the operative provisions.)

The notion is that a recital does not (or should not) create a legal obligation in and of itself.

Instead, a recital should tell those considering the instrument what the background is to the document and thereby it gives a steer to how the operative provisions should be construed.

Recitals are thereby (or should be) an aid to construction and interpretation of a legal instrument.

(That said, in twenty years of experience of practical commercial law, I have seen recitals used for all sorts of naughty purposes.)

The key recitals in the AstraZeneca agreement are the following:

These recitals set out the shared understanding of the European Commission and AstraZeneca as at the time of the agreement (which was signed by both parties on 27 August 2020).

A breach of a recital – that is, if a recital is not factually true – does not (at least under English law) trigger any automatic remedy.

But a recital can have effect when it comes to construing the effects of other provisions.

The first of the three quoted recitals is interesting in that it shows the European Commission is already aware that AstraZeneca is scaling up its capacity for the broadest possible availability, separately from this agreement.

The second quoted recital then expressly affirms that this agreement is only ‘part’ of that scale-up.

And the second quoted recital introduces the phrase that has become famous as part of the current political controversy: ‘Best Reasonable Efforts’.

In particular, the recital records that AstraZeneca is committed to using ‘Best Reasonable Efforts’ to build capacity to manufacture 300 million ‘initial’ doses.  

The third quoted recital then says the supply of those ‘initial’ doses will be in accordance with the terms of the agreement.

(As these are only recitals, not that much – or perhaps anything – can be made of the second quoted recital not referring to ‘according to the terms of the agreement’ but the third quoted recital then doing so, but it is a curious omission.)

*

So much for the recitals.

But before we go to the operative obligations, we need to look at the definitions and at one definition in particular: ‘Best Reasonable Efforts’.

Here, unlike in English law agreements which tend to leave ‘best endeavours’ and ‘reasonable endeavours’ to a court to sort out (though I did once catch one naughty ‘Magic Circle’ law firm trying to expressly define in a contract the more onerous ‘best endeavours’ to mean the less onerous ‘reasonable endeavours’), the parties in this agreement have agreed a definition of ‘Best Reasonable Efforts’.

Indeed, like New York, so enamoured are the parties of the concept, the parties have defined the term twice.

There are ‘Best Reasonable Efforts’ for the commission and ‘Best Reasonable Efforts’ for AstraZeneca.

As we are concerned with the supply obligations of AstraZeneca, we need to know what the term means for them:

Here we need to remember that a definition is only a definition, and that the important thing is how the definition is employed in an operative clause.

But when we do see the term in an operative clause, all of this definition will be applicable.

And so there is a significant difference between an absolute obligation (‘[x] shall do [y]’) and a qualified obligation ‘[x] shall use Best Reasonable Efforts to do [y]’ – for the latter comes with all the baggage of the defined term.

*

Now come the operative clauses.

This being a bilateral supply agreement, the primary obligations will be for one party to supply a thing, and for the other party to pay for it.

In very (very) general terms, many of the other provisions of the agreement will be of secondary importance to these two primary obligations.

This post is not concerned with the payment obligations, many of which are in any case redacted, and so we will look at the supply obligations.

These mainly are in article 5.

The primary obligation of the supplier under this agreement is to do two things: to manufacture (so that the vaccine is ready for distribution) and to deliver.

And, in respect of the initial doses, this dual obligation is in article 5.1:

We can also see that this provision makes both the manufacturing-ready-for-distribution and delivery obligations for the initial doses of the vaccine subject to ‘Best Reasonable Efforts’.

(Articles 5.2 and 5.3 then deal with optional orders for further and additional doses.)

But then there is a further clause – which sadly warrants an Alan Hansen wince at its awkward drafting.

Article 5.4 provides:

Is this also a primary supply obligation?

Perhaps it is, and article 5.1 goes only to distribution and delivery, but it seems to me that the intention is that article 5.4 deals only with the location of the manufacturing (hence (a) the heading of article 5.4, though headings usually are not to be used for interpreting contracts, and (b) the text in the article which follows ‘provided’) – rather than it being the primary manufacturing obligation itself.

And the placing of the reference in that article to the United Kingdom is also odd, though this was probably a late amendment to make sure that the provision was Brexit-proof.

But for the purpose of this post, it does not really matter, as this obligation too is subject to ‘Best Reasonable Efforts’.

*

But, as the jurist Jimmy Cricket would aver, there is more.

If we now go down to article 13 we will see the representations and warranties of AstraZeneca:

And we can see at article 13(1)(e) what may seem to be a relevant promise by AstraZeneca.

Did AstraZeneca fail to fulfil its contractual obligations to the European Union by reason of conflict with obligations to third parties?

Did such obligations to third parties impede AstraZeneca’s performance of its obligations under this agreement?

A breach of article 13(1)(e) by AstraZeneca would be legally consequential – this is not just a recital – and (at least under English law) a breach would entitle the European Commission to compensation, if it could show that it caused damage, or even to rescind the agreement.

But it is not clear that the fact that AstraZeneca did have a prior agreement in respect of the United Kingdom such that it would mean that AstraZeneca was in breach of article 13(1)(e).

Article 13(1)(e) does not say that AstraZeneca promises to not have any other such obligations but that those obligations will not conflict with this agreement or impede performance of the obligations under this agreement.

And the relevant obligations under this agreement are, as defined, simply to use ‘Best Reasonable Efforts’ – so the other obligations would have to conflict with or impede not some absolute obligation, but only an obligation to use ‘Best Reasonable Efforts’.

Furthermore, and as we have already seen with the recitals, the European Commission expressly acknowledged that AstraZeneca was scaling-up manufacture generally, and that only part of this was for the European Commission.

That AstraZeneca had a prior agreement in respect of the United Kingdom was also well-publicised and it cannot be seriously posited as something unknown by and unforeseen to the commission.

Indeed, AstraZeneca was in a position to scale-up and so on because of this prior agreement.

In all these circumstances, it would seem to me to be difficult for the European Commission to rely on article 13(1)(e), and even if it could, it is not clear where that would get the commission.

And, of course, there would also be the possible difficulty that the Swedish AstraZeneca entity that accepted the burden of article 13(1)(e) is not even the AstraZeneca entity that has entered into any obligations in respect of the United Kingdom.

*

So, we can now go back to Wednesday 27th January 2021, when the relevant European Commissioner said:

‘The view that [AstraZeneca] is not obliged to deliver because we signed a ‘best effort’ agreement is neither correct nor is it acceptable.’

In view of what that agreement actually says – recitals, definitions, primary obligations, warranties, representations, and so on – there is reason to believe that this statement by the commissioner was incorrect and misleading.

As long as AstraZeneca fulfilled the definition of ‘Best Reasonable Efforts’ in respect of its obligations under article 5(1) of the agreement, then AstraZeneca has performed its side of the bargain.

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What is Article 16 of the Northern Irish Protocol – and what on Earth was the European Commission thinking? (Includes a copy of the now deleted proposed regulation.)

30th January 20211

After four years or so of chronicling the various self-inflicted unforced errors of the United Kingdom, and the better decisions at each stage of Brexit by the European Union, it is kind of refreshing to see the European Commission commit a pratfall.

Of course, this is a grave situation, and we should be terribly earnest, but still: it is salutary to be reminded that no entity is perfect.

That said, some partisans – this time for the European Union – will maintain that there was no error and that the European Commission was entitled yesterday to invoke article 16 of the Irish protocol.

Unfortunately for such partisans, the European Commission did a quick reverse-ermine last night to un-invoke article 16.

This was quite the spectacle for onlookers at the end of what was, on any view, not a good week for the European Commission.

But what is article 16?

And what on Earth was the European Commission thinking?

And how can the European Commission explain (away) recital 17 of the (now deleted) proposed regulation in question?

*

One of the blessings of Brexit is dealing with ‘articles’ of international legal instruments – most famously article 50 of the treaty on European Union.

The word ‘article’ is somehow grander than the more mundane ‘section’ and the plebeian ‘clause’.

And indeed articles tend to more self-contained as legal provisions – sometimes like micro legal instruments within macro legal instruments.

Article 16 is within the Irish protocol, which in turn is a protocol to the withdrawal agreement.

Instruments within instruments within instruments.

The article provides in its entirety:

The article is entitled ‘Safeguards’ – but straight away you will see that the provision is itself subject to its own safeguards.

In paragraph 1, the trigger for the safeguards has to be a serious situation that is likely to persist.

And – it then provides that any safeguards will be ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular serious situation.

And – ‘priority’ shall be given to what measures that cause the least disturbance.

And – in paragraph 2, any imbalances caused by the uses of the safeguards can be addressed.

And – in paragraph 3, there is a further process to be followed, as set out in an annex.

Annex 7 then in turn supplements the substantive limits to the use of Article 16 safeguards with procedural protections:

Even in the event of ‘exceptional circumstances’ under point 3 of this annex, there is still a procedure to be followed.

Safeguards within safeguards within safeguards, and so on.

In summary: invoking article 16 is not to be done casually or by mere oversight.

It is not a red button that can be pressed by accident.

There are substantive and procedural conditions to be fulfilled before it can be invoked.

And the European Commission will know this – for two reasons.

First, article 16 is a provision which the European Union recently agreed.

And second, the European Union is a creature of law itself and is thereby bound by the letter of the law in what it can and cannot do.

The essence of the European Union is process, or it is nothing.

*

Given the careful substantive and procedural protections of article 16 it came as a bit of a surprise when reports emerged yesterday that the European Commission was invoking the provision – and was doing so in a highly charged political situation.

As the Guardian reported:

Even the archbishop of Canterbury.

Imagine that.

*

Although the invocation of article 16 was widely reported by major news sites – and was not denied by the commission – there appears to have been no formal announcement by the commission.

Indeed, there appears to be no ‘on the record’ confirmation that it was invoked.

But.

What happened is that a proposed European Union regulation appears to have been published.

The regulation (in draft form) appears to be at the internet archive.

And, while I was writing this post, a reliable source has provided me with this ‘final’ copy that was deftly downloaded before the European Commission deleted the regulation.

tradoc_159398 (1)

*

Recital 16 – a formal recital! – of this regulation has the European Commission asserting that the quantitive restriction on exports was ‘justified’ under article 16, and that the justification was because it was ‘in order to avert serious societal difficulties due to a lack of supply threatening to disturb the orderly implementation of the vaccination campaigns in the Member States’.

This is significant, as the recital indicates that the justification exercise has already been conducted – that the recital describes a thing that has already taken place.

But asserting the safeguard is justified is not the same as showing that the substantive requirements of article 16 have been met: was it ‘restricted’ to what is ‘strictly necessary’ for the purpose of remedying that particular situation, and was ‘priority’ given to what measures that cause the least disturbance?

Was the measure even within the scope of the Irish protocol in the first place?

And was the annex 7 procedure followed – or even considered?

What we do know, however, is that formal recitals to legal instruments do not come about by accident – even when those regulations are in draft form, let alone ‘final’ form.

Somebody somewhere in the European Commission had to have made a decision for that recital to be part of the regulation.

And that can be most plausibly explained by someone at the European Commission having decided to invoke article 16.

*

The invocation did not last long.

The European Commission issued a late-night press release stating that it was not triggering article 16:

The key sentence is unqualified (and is curiously in the present tense): ‘The Commission is not triggering the safeguard clause.’

*

The known facts point to article 16 having been triggered – that is the most plausible explantation for recital 16 to the proposed regulation – but also point to the commission not having followed annex 7.

In the immediate political context of concerns about ‘vaccine nationalism’ and in the broader context of the border in Ireland after Brexit, it was an unwise move by the European commission.

(Though, as averred at the head of this post, it was also good to see that the European Union can blunder as horribly as the United Kingdom.)

Perhaps the European Commission now hopes that this mistake will fade and disappear.

Perhaps both sides will now take more care before even considering article 16 safeguards.

Or perhaps all this is, in effect, a dress rehearsal for the political crisis when either side does go through with invoking article 16.

Brace, brace.

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The United States had its cathartic post-2016, post-Trump ceremonial moment – but the United Kingdom cannot have a similar post-2016, post-Brexit moment

22nd January 2021

Two days ago the inauguration of a new president in the United States gave ceremonial form to the constitutional substance that the presidential term of Donald Trump was over.

What had been done in 2016 had, to a significant extent, been undone.

Of course, there will be things that could not been undone, such as the scale of the avoidable loss of life by reason of a flawed coronavirus policy.

The extensive conservative appointments to the federal judicial benches will take a political generation to counterbalance, if they are counterbalanced at all.

And Trumpism – populist authoritarian nationalism feeding off post-truth hyper-partisanship – certainly has not gone away, even if Trump is no longer in the White House.

But taking account of these exceptions, there was still a moment of closure: that a particular presidency was both formally and substantially at an end.

*

In the United Kingdom there will not be such a moment where one can say the consequences of the 2016 referendum vote will come to a similarly cathartic end.

In 2016, American voters (via the electoral college) elected Trump for a term of four years, while those in the United Kingdom voted for Brexit with no similar fixed term.

One decision was set to be revisited in four years, the other was not.

*

Even the (various) departure dates have not provided any sense of release.

The United Kingdom was to leave on on 29th March 2019, then 12th April 2019 or 22nd May 2019, then 31st October 2019, and then 31st January 2020 (on which date the United Kingdom technically left the European Union), and then there was a transition period which would end on 31st December 2020 (on which date the transition period did end) or 31st December 2021.

A couple of this spate of departure dates did turn out to be legally significant, but none of them appear to have had any substantial effect on the politics of Brexit.

Those in favour of Brexit appear to still be trying to convince themselves and others of its merits, and those opposed to Brexit are still seeking to demonstrate its folly.

(This is despite the ‘mandate’ of the 2016 referendum having now been discharged,  in that the United Kingdom has now departed the European Union.)

None of the various departure dates marked when those in favour of or against Brexit could say the matter is decisively over, in the same way the Trump presidency came to its obvious end.

Partly, of course, this is because of the ongoing pandemic: every political thing is now muted.

But even taking the pandemic into account, the politics unleashed by the 2016 referendum have certainly not come to anything like an end.

*

But Brexit will never be over in other senses.

As I averred in this Financial Times video, the trade and cooperation agreement between the European Union is expressly structured as a ‘broad….framework’ that can be supplemented by further agreements on discrete issues and is subject to five-yearly reviews on more fundamental issues.

 

Brexit is now a negotiation without end.

Instead of ever-closer union we now have ever-closer (or less close) cooperation.

There has not been a once-and-for-all settlement of the matter of the relationship between the United Kingdom and the European Union.

We have simple swapped one dynamic relationship for another.

*

Some of those opposed to Brexit are now waiting for a grand realisation – where a substantial number of people may wake up to what has happened since 2016 and come to their senses.

The notion is that such ‘loss aversion’ will have considerable political force and push the United Kingdom back towards the European Union – perhaps even to swiftly rejoining as a member.

This may happen – the lesson of 2016 is that many unlikely things can actually happen in politics.

But it is unlikely – the government and its political and media supporters are adept at evasions and misdirections, and voters are capable of blaming many things before they will blame their own votes.

Yet taking this as a possibility, it would not be enough.

This is because there are two constituencies that those who seek for the United Kingdom to (re)join the European Union need to win over.

The first is the United Kingdom electorate which needs to be won over to settled and sustained support for full membership of the European Union (without the benefits of the United Kingdom’s previous opt-outs).

The second, and perhaps far harder, will be winning over the European Union.

A belief that once the United Kingdom sorts itself out, that (re)joining the European Union would be straightforward is just a variant form of British (or English) exceptionalism.

Even the grandest, most dramatic domestic realisation of the folly of Brexit will not mean the United Kingdom joins the European Union again, unless the European Union also sees it as in its interests for the United Kingdom to (re)join.

Remorse, however sincere and lasting, will not be enough.

There is no reason or evidence to believe that the European Union would consider membership of the European Union for at least a political generation.

(And the United Kingdom itself may not even exist in its current form by then.)

So as Brexit is a negotiation without end, it will also be two political exchanges (the domestic debate, and the two-way relationship between the United Kingdom and the European Union) without any early or obvious end.

*

There will be no cathartic Biden-like ceremony to bring Brexit to a close.

This is because of the nature of the 2016 referendum (which, unlike the election of Trump, was not a decision for a fixed period); and because of the dynamic structure of the new relationship as set out in the trade and cooperation agreement; and because of the unsettled politics both internally in the United Kingdom and of its relationship with the European Union.

And so, to a significant (though not a total) extent, the United States was able to bring what it decided in 2016 to a formal and substantial end, the United Kingdom cannot similarly do so.

For the United Kingdom, 2016 is here to stay.

*****

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The four ways the government of the United Kingdom is abusing and misusing the law – and the reason the government is getting away with it

2nd January 2021

Those with political power tend to want more power, and those who want more power will tend to then abuse it.

This is not a new observation, and it is perhaps one which can be made of most if not all human societies.

The role of law and government is thereby not so often to enable such abuse of power, but to acknowledge the likelihood of abuse and to seek to limit or prevent it.

That is why those with power are often subject to conventions and rules, why there can be checks and balances, and why many political systems avoid giving absolute power to any one person.

That those with power want to use, misuse and abuse that power is not thereby a feature of the current government of the United Kingdom, but a universal (or near-universal) truth of all those who seek and have political power everywhere.

Those with political power will tend to try and get away with misusing or abusing it.

*

The current government of the United Kingdom, however, is remarkable in just how open it is in its abuse and intended abuse of law, and in at least four ways.

And what is also striking is what has changed politically so as to enable them to be so open.

*

First, the current government sought to give itself the power to break the law.

This was in respect of the Internal Markets bill, and the ability to break the law was stated as the intention by a cabinet minister in the house of commons.

This proposal led, in turn, to the resignations of the government’s most senior legal official and a law officer in the house of lords.

And then it was even supported by a majority of the house of commons.

The proposal has now been dropped – and some would say that it was only ever a negotiating tactic.

But even with this excuse, it was an abuse of legislation and legislation-making, requiring law-makers to become law-breakers, and signalling to the world that the government of the United Kingdom does not take its legal obligations seriously.

There was no good excuse for this exercise.

Yet the government sought to do it anyway.

*

Second, the government of the United Kingdom is seeking to place itself, and its agents, beyond the reach of the law.

This can be seen in two bills before parliament: one effectively limiting the liability of service personnel for various criminal offences, including for torture and other war crimes, and the other expressly permitting secret service agents to break the law.

 

From one perspective, these two proposals simply give formal effect to the practical position.

It has always been difficult to prosecute members of the armed services for war crimes.

And domestic secret service agents have long relied on the ‘public interest’ test for criminal activity (for any criminal prosecution to take place there are two tests: whether there is sufficient evidence, and whether the prosecution is in the public interest, and guess who routinely gets the benefit of the latter).

And secret service agents abroad have long had legal immunity back in the United Kingdom, under the wonderfully numbered section 007 of the Intelligence Services Act 1994.

The primary significance of these two current proposals is that the de facto positions are being made de jure.

The government believes (rightly) that it can legislate to this effect and get away with it.

*

The third way – when the government cannot legislate to break the law or to make it and its agents beyond the law – is for the government to legislate so as to give itself the widest possible legal powers.

Again, this is not new: governments of all parties have sought wide ‘Henry VIII clauses’ that enable them to bypass parliament – legislating, and amending and even repealing primary legislation by ministerial decree.

But what is new here is the scale of the use of such legislation – both the pandemic and Brexit have been used as pretexts of the government to use secondary legislation for wide ranging purposes – even to limit fundamental rights without any parliamentary sanction.

And as I have argued elsewhere, there is no absolute barrier under the constitution of the United Kingdom to an ‘enabling act’ allowing ministers to have complete freedom to legislate by decree.

*

The fourth way is the flip-side of the government seeking more legal power.

The government is seeking ways to make it more difficult, if not impossible, for it to be challenged in the courts.

This can be done formally: by reducing the scope of judicial review or the reach of the laws of human rights and civil liberties, or by ‘ouster’ clauses, limiting the jurisdiction of the courts.

It can be done practically (and insidiously): by creating procedural impediments and by cutting or eliminating legal aid for such challenges.

It also can be achieved by the government either promoting or not challenging attacks on the judiciary and the role of courts in holding executive power to account.

If the government cannot break the law, or make itself immune to the law, or give itself wide legal powers – it certainly does not want citizens to be able to challenge it.

Of course, this impulse is also not new – and examples can be given of governments of all parties seeking to make it more difficult for legal challenges to be brought.

But again, what is different from before is the openness of these attempts.

There is no self-restraint.

The government is going to get away with as many of these barriers as it can.

*

The big change is not that those with political power want to abuse it – and to stop those who can check and balance that abuse.

That is a problem no doubt as old as law and government itself.

What is remarkable is how the United Kingdom government is now so brazen about it.

The government just does not care about being seen doing this – and if there is any concern or even outcry – that is regarded as a political advantage.

The ‘libs’ are ‘owned’ and those with grins will clap and cheer.

In this current period of hyper-partisanship there is no legal or constitutional principle that is beyond being weaponised.

What perhaps restrained the United Kingdom government – and other governments – from being so candid in their abuses and misuses of power was once called ‘public opinion’.

People cared about such things – or at least those in government believed people cared.

But, as this blog averred on New Year’s Eve, what happens if a public-spirited donkey does tell the animals on the farm that power is being misused or abused – and the animals still do not care.

‘The animals crowded round the van. “Good-bye, Boxer!” they chorused, “good-bye!”‘

*

And this brings us back to the key problem for liberalism – and for the principles of transparency and accountability – in this age of Brexit and Trump.

It is not enough to point out the lies and misinformation – or to show the misuses and abuses of law – if a sufficient number of people do not care that they are being lied to or misinformed and that the law is being misused or abused.

And there is nothing the media or commentators can do about this (though we should still be public-spirited donkeys anyway).

This requires a shift – not in media and communications – but of politics and of political leadership.

Only if enough citizens care about the government abusing or misusing the law will the government stop doing it, at least so openly.

And until then the United Kingdom’s indifference towards the rule of law and other constitutional norms will just be a register of the public’s general indifference about the government getting away with it.

*****

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The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament

30th December 2020

Today Parliament will be expected to pass, in one single day, the legislation implementing the Trade and Cooperation Agreement into domestic law.

This situation is exceptional and unsatisfactory.

The bill is currently only available in draft form, on the government’s own website.

As you can see, this means that ‘DRAFT’ is inscribed on each page with large unfriendly letters.

And we are having to use this version, as (at the time of writing) the European Union (Future Relationship) Bill is not even available parliament’s  ‘Bills before Parliament’ site.

The draft bill is complex and deals with several specific technical issues, such as criminal records, security, non-food product safety, tax and haulage, as well as general implementation provisions.

Each of these specific technical issues would warrant a bill, taking months to go through the normal parliamentary process.

But instead they will be whizzed and banged through in a single day, with no real scrutiny, as the attention of parliamentarians will (understandably) be focused on the general implementation provisions, which are in Part 3 of the draft bill.

And part 3 needs this attention, as it contains some remarkable provisions.

*

Clause 29 of the draft bill provides for a broad deeming provision.

(Note a ‘clause’ becomes a ‘section’ when a ‘Bill’ becomes enacted as an ‘Act’.)

The intended effect of this clause is that all the laws of the United Kingdom are to be read in accordance with, or modified to give effect to, the Trade and Cooperation Agreement.

And not just statutes – the definition of ‘domestic law’ covers all law – private law (for example, contracts and torts) as well as public law (for example, legislation on tax or criminal offences).

It is an ingenious provision – a wave of a legal wand to recast all domestic law in whatever form in accordance with the agreement.

But it also an extremely uncertain provision: its consequences on each and every provision of the laws of England and Wales, of Northern Ireland, of Scotland, and on those provisions that cover the whole of the United Kingdom, cannot be known.

And it takes all those legal consequences out of the hands of parliament.

This clause means that whatever is agreed directly between government ministers and Brussels modifies all domestic law automatically, without any parliamentary involvement. 

*

And then we come to clause 31.

This provision will empower ministers (or the devolved authorities, where applicable) to make regulations with the same effect as if those regulations were themselves acts of parliament.

In other words: they can amend laws and repeal (or abolish) laws, with only nominal parliamentary involvement.

There are some exceptions (under clause 31(4)), but even with those exceptions, this is an extraordinarily wide power for the executive to legislate at will.

These clauses are called ‘Henry VIII’ clauses and they are as notorious among lawyers as that king is notorious in history.

Again, this means that parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.

*

There is more.

Buried in paragraph 14(2) of schedule 5 of the draft bill (the legislative equivalent of being positioned in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’) is a provision that means that ministers do not even have to go through the motions of putting regulations through parliament first.

Parliament would then get to vote on the provisions afterwards.

This is similar to the regulations which the government has been routinely using during the pandemic where often there has actually been no genuine urgency, but the government has found it convenient to legislate by decree anyway.

Perhaps there is a case that with the 1st January 2021 deadline approaching for the end of the Brexit transition period, this urgent power to legislate by decree is necessary.

But before such a broad statutory power is granted to the government there should be anxious scrutiny of the legislature.

Not rushed through in a single parliamentary day.

*

There are many more aspects of this draft bill which need careful examination before passing into law.

And, of course, this draft bill in turn implements a 1400-page agreement – and this is the only real chance that parliament will get to scrutinise that agreement before it takes effect.

You would not know from this draft bill that the supporters of Brexit campaigned on the basis of the United Kingdom parliament ‘taking back control’.

Nothing in this bill shows that the Westminster parliament has ‘taken back control’ from Brussels.

This draft bill instead shows that Whitehall – that is, ministers and their departments – has taken control of imposing on the United Kingdom what it agrees with Brussels.

And presumably that was not what Brexit was supposed to be about.

*****

This law and policy blog provides a daily post commenting on and contextualising topical law and policy matters – each post is published at about 9.30am UK time.

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

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