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”.

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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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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