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

2nd June 2021

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

Then the chair of the public accounts committee said:

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

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

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

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

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

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There is no mention of the royalty in the announcement.

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

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

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

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

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

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

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

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

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

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

And prestige procurement projects do tend to have problems.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The envisaged timings also seem rather ambitious.

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

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

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

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

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

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

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

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

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

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

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

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

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The British Museum, looted artefacts, and the law

 4th May 2021

This post is prompted by an outstanding and thought-provoking book about museums.

The book is The Whole Picture: The colonial story of the art in our museums & why we need to talk about it by Alice Procter (Amazon page here – but do order from your local bookseller if you can).

Two thoughts that the book provoked for me were about the British Museum.

This post sets out those two thoughts and where those thoughts then led me.

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The first thought was a recollection of this eloquent and plausible 2004 justification by the museum’s then director Neil MacGregor of the museum’s position relating to controversial items in its collection. 

The passage in that piece that struck me at the time and has stayed with me was this about the founding of the museum back in 1753 (and I have broken up the paragraphs for flow):

‘To ensure that the collection would be held for the benefit of citizens, and not the purposes of the crown, Parliament hit upon a solution of extraordinary ingenuity and brilliance.

‘They borrowed from private family law the notion of the trust. The decision that the museum would be run not as a department of state, but by trustees had – and still has – crucial implications.

‘Trustee ownership confers duties rather than rights. Trustees must derive no benefit for themselves, but hold the collection exclusively for the advantage of the beneficiaries.

‘The collection cannot be sold off.

‘The museum was set firmly outside the commercial realm, a position epitomised by the principle of free admission.

‘Even more astonishingly, it was in large measure removed from the political realm.

‘Trustees are not allowed by law merely to follow government orders: they have to act as they judge best in the interest of beneficiaries, including, crucially, future and unborn beneficiaries.

‘Who are the beneficiaries for whom the trustees hold the collection?

‘Startlingly, they are not just the citizens of Britain.

‘The British Museum was from the beginning a trust where the objects would be held “for the use of learned and studious men [in 1753 they were mostly men], both native and foreign”.

‘In his will, Sloane had declared his desire that his collection should be preserved “for the improvement, knowledge and information of all persons”.

‘The rest of the world has rights to use and study the collection on the same footing as British citizens.’

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I have often thought about that passage.

It is convincing as far as it goes – once an item is part of the collection it is safeguarded and retained for the benefit of all.

But.

There was something missing.

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Here we come to the second thought provoked by the book.

This is a legal principle – known to lawyers and also normal people – which is known in its Latin form nemo dat quod non habet.

In plain language: a person cannot have a greater property right (‘title’) in a thing than the person who provides them with the thing.

So if I provide you with a thing – but I do not own it to begin with – then you will not own it either.

Applied to the British Museum, it seemed to me that it was all very well the British Museum boasting of how well an item in its collection will be looked after under the terms of its trust – but that was no answer if the original acquisition was unsound.

Nemo dat quod non habet – or garbage in, garbage out in legalese.

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So with these two thoughts I then wondered: what is the position in respect of an artefact in the British Museum if the acquisition was tainted?

That, for example, the person providing the item had stolen it?

And this query led me to the British Museum Act 1963 and the 2005 case of the Attorney General vs the British Museum.

In essence, once an item is part of the British Museum collection, the 1963 Act provides only only a narrow basis for the trustees to ‘dispose’ of the items.

This narrow basis is primarily set out in section 5 of the 1963 Act.

(There is also an exception for transferring an item to another museum – and there is an exception for the return of human remains.)

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So unless an item in the collection is within the scope of section 5 of the Act then, in effect, the trustees of the British Museum cannot at law give back the item – regardless of the circumstances of its acquisition.

What this meant in practice was illustrated in the 2005 case.

The museum had purchased after the second world war four items that has been looted by the Nazis from their owner.

The issue before the court was whether there was implicit exception to the terms of the British Museum trust in respect of when there would be a moral obligation to return the items.

The judge – the very head of the court of chancery and equity – held that the trustees did not have the power to do this, even if they wanted to do so (which they plainly did).

Any application of the principle of nemo dat quod non habet appears to have been precluded by operation of the Limitation Acts.

The judge did indicate in passing that if title in the items had not passed on acquisition then the items would not have (technically) formed part of the collection of the first place and thereby the terms of the trust and section 5 would not apply.

But it would presumably be out of time for title in respect of a 1945 acquisition to be contested sixty years later.

Happily, there was a (fascinating) recommendation by the (wonderfully named) Spoliation Advisory Panel that the heirs to the person whose art had been looted be compensated by an ex gratia payment.

And since the 2005 case, there is now the Holocaust (Return of Cultural Objects) Act 2009 that provides a statutory basis for the return of items looted by the Nazis.

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For items looted by the Nazis, therefore, the legal position is now that the loot can be returned – even if it is part of the collection.

But what of items looted by others at other times and other places – why should the unfairness caused by only one manner of theft be addressed?

To its credit (to an extent) the British Museum is open that this is an issue.

On its press page, it has links to explanations as to its positions in respect of what it calls ‘contested items’.

(It also has a page setting out how it has settled the Nazi loot claims.)

The impression that the British Museum is no doubt seeking to promote with these pages is that it is taking the issues seriously and is sensitive to grievances.

But.

The attempt to give this impression is not convincing.

This is partly because the leadership of the museum is still wedded to the notion that the terms of the trust gives it some elevated status that means the grubby question of acquisition is not relevant.

In 2018, the current chair of the British Museum trustees wrote the Guardian in almost identical terms to those employed by MacGregor in 2005:

‘In what was one of the great acts of the Enlightenment, in 1753 parliament established the British Museum as a trust, the first of its kind in the world, which was to be run independently of politics and of parliament. This autonomy has been central to its scholarship and public purpose for the past 265 years. […]

‘Trustees today have three broad responsibilities: to conserve and enhance the collections for ever; to generate new knowledge, especially by supporting the kind of research that is only possible in a large encyclopaedic museum; and to make the collections accessible to the whole world. They work with colleagues across the UK and around the world to share knowledge and objects from their collections as widely as possible. But they don’t see the objects for which they are responsible as negotiating chips in a political debate.’

But again, this go-to ‘trust’ defence says nothing to the issue of how the items were acquired.

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In 2019 one trustee resigned, and she gave as one of her reasons (which is broken up for flow):

‘In November 2018, a French report commissioned by President Macron recommended the full restitution of looted African artworks.

‘It burst open the debate over the repatriation of cultural artefacts. Museums, state officials, journalists and public intellectuals in various countries have stepped up to the discussion.

‘The British Museum, born and bred in empire and colonial practice, is coming under scrutiny. And yet it hardly speaks.

‘It is in a unique position to lead a conversation about the relationship of South to North, about common ground and human legacies and the bonds of history.

‘Its task should be to help us all to imagine a better world, and – along the way – to demonstrate the usefulness of museums.

‘This would go some way towards making the case for keeping its collection in London.

‘But its credibility would depend on the museum taking a clear position as an ally of coming generations.’

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It is correct that the provisions of the 1963 Act prevent the trustees from giving away or giving back items in its collection.

And the operation of the Limitation Act means that, as the chair of the spoliation panel said in one report, the position of the museum is legally impregnable. 

Nemo dat quod non habet may well be a principle of law – but it is subject to statutory bars and exclusions.

But.

As with the items looted by the Nazis, where there is a will there is a way.

Legislation may be required – similar to the 2009 legislation for holocaust items.

And even without legislation, the position of the museum – but-for-the-legislation – could be made more clear – as it was in the 2005 case above.

But instead the impression one gains from reading around the subject is that the museum hides behind terms of the 1963 Act – that it is an excuse not for thinking seriously about the issue.

For even if the Limitation Acts rob the principle of nemo dat quod non habet from having practical legal consequences, it still has the full force of a moral imperative.

Instead of rhapsodising about the heady genius of the 1753 trust, the leadership of the museum should be conscious that nothing about the terms of the trust goes to how the items were acquired.

Of course, specific ‘contested’ items will raise specific concerns and objections.

And there is the possibility that items could leave the collection only to be destroyed or lost to the black market – though this risk should not be over-stated, still less assumed.

But as a general rule, the British Museum and other museums should accept morally (if not legally) that if an item was acquired when those from whom the item was taken did not give permission then, as a matter of principle, the item should be returned.

And if the law does not permit this, then the museum should be unafraid to aver that the law should be changed.

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