Category: United Kingdom Law and Policy

The one good thing that may come out of the current row about vaccines export controls

1st February 2021

Since 2016 one unfortunate feature of the Brexit policy (or lack of policy) of the United Kingdom has been the disregard for process.

The European Union brought along the tool of process to its negotiations, while the United Kingdom brought bluster and bravado.

The European Union did better in those negotiations than the United Kingdom. 

But.

Process is not the property of the European Union.

Process can be used for the advantage of other parties, depending on the situation.

Or process can protect a weaker party against a misuse of power.

And the United Kingdom was, before Brexit, quite good at using process in its dealings with its then fellow European Union member states and European Union institutions.

The current row over the invocation of Article 16 by the European Union without it properly having followed the correct (or indeed any) process shows how important it is to hold the European Union to following an agreed process.

Process can matter, a lot.

And process can work to the advantage of the United Kingdom too.

As the United Kingdom develops its post-Brexit relationship with the European Union, through the joint institutions and agreed procedures of the trade and cooperation agreement, the good and thoughtful use of process could become an advantage in respect of the European Union.

The United Kingdom does not have to persist with the loud crashes, bangs and wallops of the Brexit era.

Playing the European Union at its own game, and winning, is also possible.

(Even if the wins are cloaked under the cover of ‘jointly beneficial outcomes’ and other such comforting language.)

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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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There is no good reason why any public contracts are not in the public domain – the AstraZeneca vaccine contract or otherwise

29th January 2021

Yesterday this blog set out in detail what could be worked out form public domain sources about the politically controversial AstraZeneca contract for the provision of vaccines to the European Union.

That post was an exercise in detective work, aided greatly by the publication of a redacted version of a contract with another supplier, the terms of which fitted neatly with the details disclosed by the European commissioner and the CEO of AstraZeneca in their public bickering.

In the comments below that post, some commenters were able to glean even more from public sources, including from further examination of the published redacted contract (and many of the commenters at this blog are awesome and experts in their fields).

It was an interesting and indeed fascinating exercise.

But.

It was something which should not have been needed.

For the actual contract should have been in the public domain to begin with.

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There is no good reason why public contracts are not in the public domain.

(By ‘public contracts’ I mean contracts for the supply of goods, services and works –  including for major projects – to public authorities.)

There are (supposed) reasons – the cant phrase ‘commercially sensitive’ is often the excuse – but no good reasons.

But there are two good reasons why public contracts should be in the public domain.

*

First, the goods, services and works supplied under public contracts are paid for with public money.

And public authorities tend to be reliable payers.

Fortunes can and often are made from lucrative public contracts.

It is not unusual for a valuable public contract to be the security for all sorts of further commercial transactions, so dependable is a public contract as a high-value revenue stream.

A good part of the wealth of the City of London, and of those currently enjoying lockdown life in expensive suburbs, is based not on the hard cut-and-thrust of private sector life but on the soft cushions of public sector contracts.

(And this dependency culture contrasts with the complaints of backbench government supporters about the supposed dependency-culture of free school meals.)

The price of this access to public money should be the burden of transparency.

A private sector company should not have the benefit of these lucrative and low-risk public contracts, and also have the contract shielded from public scrutiny.

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Second, turning from revenue to performance, there is a public interest in publication of how any public contract addresses issues of risk allocation and sanctions for breach.

This is not about prices – as the European commission showed in publication of the redacted vaccine supply contract, it is perfectly possible to publish the substance of how a contract manages risk without publishing (real or imagined) ‘commercially sensitive’ material.

How does the contract deal with foreseeable risks?

How does the contract allocate the burden of risks between the parties?

What happens if a provider is unable to provide the agreed goods, services or works?

This is the meat of any substantial contract – not just the list of what is bought and for what price.

If that is all a contract is then there would be no need for any contract to be more than a page long.

The bulk of a contract, other than for the most simple of transactions, deals with what happens when things do not turn out as agreed – and what can happen next.

And in any public contract what happens next in the event of any non-performance is as much a matter in which the public interest is engaged as in the performance.

But when a contract is – in its entirety – hidden from public view, the public have no knowledge of how that contract allocates risk – or indeed whether the contract allocates risk at all.

This in turn means there will be contracts where the risk of non-performance is loaded entirely on the public authority.

And with such contracts the supplier will not only have the benefit of a lucrative revenue stream but also the benefit of it being legally risk-free.

A public supply contract for cakes, and for the service of eating them.

*

Publication of such contracts would not, at a stroke, mean that problems of non-performance or overcharging will go away.

Public procurement has many problems, and non-transparency is only one.

But the ‘commercially sensitive’ cloak of invisibility serves no one other than the public officials and suppliers who are shielded from any meaningful scrutiny.

A public official can sign a bad deal (and then sign amendment after amendment to that deal), and no one will find out because it is all ‘commercially sensitive’.

A supplier can get away with either bad contracts or terms not being enforced against them, again because it would be commercially sensitive’ for the terms of the contract to be published.

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Some of those in public procurement will view the above as harsh – and will protest: how could you be so offensive and so doubtful.

But such displays of (non-commercial) sensitivity are not a good reason for non-disclosure of public contracts.

If all is well, then nothing will be lost with publication of public contracts – and publication will provided public confidence that good contracts are being entered into at fair prices and with effective and enforceable allocations of risk.

And if all is not well, then…well.

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What can be worked out about the ‘best efforts’ clause in the AstraZeneca vaccine supply agreement?

28th January 2021

Over at the Financial Times I have done a brief summary post on the ‘best efforts’ clause that features in the current public row between the European Commission and AstraZeneca – please click and read here.

This post sets out the ‘workings out’ for that summary, based on the information available to me this morning.

*

First, what is the public row?

The inkling of the row was on (Friday) 22nd January 2021: EU hit by delay to Oxford/AstraZeneca vaccine delivery.

The European Commissioner responsible in respect of the vaccine tweeted:

Here, note two things.

First, the information comes from AstraZeneca – in effect, the European Commission is being formally notified of a delay.

Second, the delays are against a ‘forecast’.

As we will see below, both of those things may be significant.

*

We now move to (Monday) 25th January 2021, and to the published remarks of the commissioner.

In particular, this passage:

‘Last Friday, the company AstraZeneca surprisingly informed the Commission and the European Union Member States that it intends to supply considerably fewer doses in the coming weeks than agreed and announced.

‘This new schedule is not acceptable to the European Union.’

Here note the following.

First, the ‘forecast’ is now a thing which was ‘agreed and announced’.

Second, the information coming from AstraZeneca is described as ‘surprising’.

Third, the reference to a ‘new schedule’.

We will come back to these details.

*

Now the interview with the CEO of AstroZeneca at la Repubblica dated (Tuesday) 26th January 2021 (and I rely on that site’s English translation).

The CEO is quoted as saying in part of his response to a question as to whether there is a feasible basis for a potential legal action against AstraZeneca:

“I can only tell you what’s in their contract. And the contract is very clear. Our commitment is, I am quoting, “our best effort”.’

*

Now back to the European commissioner, on (Wednesday) 27th January 2021 and further published remarks:

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

‘We signed an Advance Purchase Agreement for a product which at the time did not exist, and which still today is not yet authorised. And we signed it precisely to ensure that the company builds the manufacturing capacity to produce the vaccine early, so that they can deliver a certain volume of doses the day that it is authorised.’

Note here the ambiguous sentence about what was signed.

Did the commission not sign an agreement with a ‘best effort clause’?

(Which was my first impression.)

Or did the commission sign a ‘best effort’ agreement but this does not remove the obligation of AstraZeneca to deliver the vaccine?

(Which is also a possible meaning of the statement, but not a meaning that would be immediately obvious to most people.) 

Also note the express reference to this being an ‘Advance Purchase Agreement’.

*

The advance purchase agreements are part of the European Commission’s vaccine policy announced last June.

In a detailed paper, both the nature and structure of these agreements are set out:

‘These agreements will be negotiated with individual companies according to their specific needs and with the aim of supporting and securing an adequate supply of vaccines. They will de-risk the necessary investments related to both vaccine development and clinical trials, and the preparation of the at-scale production capacity along the entire vaccine production chain which is required for a rapid deployment of sufficient doses of an eventual vaccine in the EU and globally. The conditions of the contract will reflect the balance between the prospect of the producer providing a safe and effective vaccine quickly and the investment needed to deploy the vaccine on the European market.’

The agreements were therefore (and were intended to be) balanced allocations of risk between the commission and the supplier.

These agreement would thereby not be bog-standard standard-form supply contracts, but agreements alert to and mindful of the particular risks in respect of the manufacture and the supply of the vaccine.

*

The agreement between the commission and Astra Zeneca is not in the public domain.

But what is in the public domain – helpfully – is a redacted version of an advance purchase agreement between the commission and another supplier.

The link to this agreement was (I am told by the commission press office) published on 19th January 2021 and so was published before this row.

This means that the redactions would not be informed by the subsequent row.

The agreement is here.

Of course, this is not the agreement between the commission and AstraZeneca, and it would only be sight of that contract that would mean you could say what was agreed with absolute confidence.

But, that said, a careful reading of this published contract is revealing.

*

Before we look at the contract, an assumption: the advance purchase agreement with AstraZeneca will be substantially similar to the published contract.

The contracts will not be absolutely identical, because there will be negotiated commercial and other terms (which are probably the redacted parts of the published contact).

And I think it is safe to assume that the agreement will not be on AstraZeneca’s own terms, given the importance the commission placed on the advance purchase agreements being a careful balance for all concerned.

Therefore I am assuming that the the advance purchase agreement with AstraZeneca and the published contract will have many identical and similar terms, even if not absolutely the same.

*

If we look at the published contract, and search, you will quickly find that ‘reasonable best efforts’ is a defined term.

(Some commentators, who have also seen the agreement, start and then sadly finish with just this definition – but as you will see, a defined term is only one step in understanding what is going on.)

The definition of the term is detailed, and indeed rather elaborate:

The size and scope of the definition tells us two things.

First, the parties did not want to leave it to the court (which in this case is the Belgian court) to construe what is a ‘reasonable best effort’ – the parties have defined it for themselves.

And second, such a detailed and elaborate definition in respect of a key component of the contract is likely to have been used in all the advance purchase agreements, not just the published one.

The fact it is not redacted in the published contract also indicates it is not a bespoke definition for just that particular contract.

*

But.

Any defined term is only as important as the operative provision in which it is used.

(This is where some other commentators have not taken the further step.)

A defined term does not exist in a vacuum.

‘Reasonable best efforts’ is not a free-floating term, to be produced like a joker in a card game.

It will be used, and its effect limited, in particular provisions.

And a search of the published contract shows that this detailed and elaborate definition is used only once (at least in the not-redacted text).

This is article 1.3 of the published agreement:

Here we will see that ‘reasonable best efforts’ is used for two things:

‘(i) to obtain EU marketing authorisation for the Product and (ii) to establish sufficient manufacturing capacities to enable the manufacturing and supply of the contractually agreed volumes of the Product to the participating Member States in accordance with the estimated delivery schedule set out below in Article I.11 once at least a conditional EU marketing authorisation has been granted.’

This means that ‘reasonable best efforts’ is only relevant for two specific purposes.

If the published contract is similar to the AstraZeneca contract, then it would be the second limb of this provision which would be relevant.

AstraZeneca would have an obligation to use ‘reasonable best efforts’ to ‘establish sufficient manufacturing capacities’ for the manufacture and supply of the vaccines ‘in accordance with the estimated delivery schedule‘.

Note the mention of the schedule, which ties in with the commissioner’s published remarks.

And note also the mention of ‘to establish sufficient manufacturing capacities’ – which would not mean, say, a diversion of what is manufactured once there are capacities.

*

And there is more.

If we now look at what happens with delays to the ‘estimated delivery schedule’ we go down to article 1.12 of the published agreement:

Here – significantly – both parties explicitly agree in article 1.12.1 that there is a risk of delays in production.

And in the event of such a delay there is an obligation under article 1.12.2 on the supplier to notify the commission and to provide a revised schedule.

Going back to what has happened in the last week, and assuming the contract with AstraZeneca is on similar terms to the published contract, we can see this is exactly what happened.

AstraZeneca informed the commission that it could not keep to the estimated delivery schedule on Friday 22nd January 2021 – and this accords with the mentions of ‘forecast’ and ‘schedule’ by the commissioner.

There was then push-back (to say the least) from the commission, and AstraZeneca – as described by the CEO – sought to rely on the estimated delivery schedule being subject to the ‘best efforts’ provision.

And the commission responded by denying that that ‘best efforts’ provision covers the delay – presumably because AstraZeneca has the capacity but is diverting it from the EU.

*

Of course, without the actual contract entered into with AstraZeneca we cannot be certain.

But it is telling how neatly the details provided in the public row fit with the steps of the terms of the published contract.

Unless there is something significant about which we do not know, it is more likely than not that the details provided in the public row mean that the contract with AstraZeneca are materially the same as that in the public contract.

If the reasoning in this post is correct then the following two things can be contended.

First, the remark of the commissioner that ‘[t]he view that the company is not obliged to deliver because we signed a ‘best effort’ agreement is neither correct nor is it acceptable” is capable of giving a misleading impression – for the agreement did have a ‘best efforts’ provision.

And second, the existence of that ‘best efforts’ provision may not be that helpful to AstraZeneca, if the correct construction of the contract is that it does not cover diverted capacity as opposed to lack of capacity – and so citing the ‘best efforts’ provision will not be enough to meet the commission’s complaint.

*

The moral of the story, of course, is that such public supply contracts should be published as a matter of course – and there is no good reason for such contracts not to be published.

The benefit of access to public money should be the burden of transparency.

But that is a far wider issue to which this blog may return.

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The fateful Bloomberg speech of 2013 – contextualising *that* speech by David Cameron eight years later

24th January 2021

Eight years ago yesterday the then prime minister David Cameron gave a speech at Bloomberg.

The speech was to have significant consequences.

The speech can be read here and can be watched here:

And, for background, there is also this Wikipedia page.

*

What should make of Cameron’s Bloomberg speech eight years later?

The speech is undeniably important in the telling of the story of Brexit.

Indeed, when historians come to write of the causes of Brexit, this speech is likely to be be emphasised as a key short-term cause.

It was the first of a sequence of events that led to the Brexit we now have: the Conservative manifesto commitment for a referendum; the 2015 general election; the return of an overall Conservative majority; the referendum bill, the (supposed) ‘re-negotiation’; the calling of the referendum; the (lacklustre) government campaign for remain; the referendum result; and so on.

In terms of a linear sequence of events, the Bloomberg speech would seem to have more reason than many others to be the prime-mover – at least in the short-term.

The first of an apparent chain reaction of political explosions, some with bigger bangs than others, that lead to the biggest bang of all: the rushed departure of the United Kingdom from the European Union.

But.

*

As Voltaire once said somewhere, history is a box of tricks we play upon our ancestors.

And so what looks neat and linear in hindsight can often be misleading.

This is because although historical narratives are (necessarily) linear if not always neat, past events are complex and invariably messy.

Accordingly, to reckon the significance of a politician’s speech – or of any text or any other speech act – one needs to place that text in contexts.

Otherwise one can fall into the error of thinking, in this particular case, that had Cameron not made that speech in 2013 there would not have been the Brexit we now have, or indeed perhaps no Brexit at all.

*

One context for the speech is the political situation of the Conservative party in and around 2013.

The party was in a coalition government with the Liberal Democrats, and the party itself had not had a majority in the house of commons since the early years of the premiership of John Major some twenty years before.

And in 2011 to 2013, the Conservative party looked as if it was being out-flanked by the United Kingdom Independence Party (Ukip).

So until and unless the Conservative party addressed the reasons for Ukip support – either by facing Ukip down or by engaging with its politics – there was a real prospect that the Conservatives would go yet longer without a parliamentary majority.

The Conservative chose to share the politics of Ukip: to make the departure of the United Kingdom from the European Union a real possibility.

(And the general election results of 2015 and indeed 2019 indicate that this Conservative political strategy has worked.)

Of course, had Cameron not made the Bloomberg speech in 2013, the surge in Ukip support and its political threat to the Conservatives would not have gone away.

Even with that speech, and the Conservative manifesto commitment of a referendum, Ukip performed strongly (at least in terms of votes) in the 2013 local elections, the 2014 European Parliament elections and the 2015 general election.

As such the Cameron speech was not a cause but an effect, and had a Conservative leader not done something in response to the rise of Ukip support eight years ago yesterday, there would have been something else before not much longer instead.

Some would say that a Conservative leader could have taken on the Ukip threat – like, say, the then Labour leader Neil Kinnock did with Militant in the 1980s – but that was not realistic.

The Conservative party – like the Labour party – had not made a positive case for the European Union for decades: to the extent the European Union impinged on domestic politics, it was invariably in terms of what the United Kingdom had opposed or had opted out of.

So as long as the Conservatives sought to obtain a parliamentary majority and Ukip would challenge that, then the place and timing of the offer of any referendum was incidental.

And given that the issue of membership of the the European Union would dominate the general election of 2015, it is quite plausible to see a referendum with a Leave victory happening afterwards, even if no speech had been given at all, at Bloomberg in 2013 or elsewhere.

*

Another context for the 2013 Bloomberg speech and its referendum commitment was the casual approach of Cameron to constitutional matters generally and referendums in particular.

There had already been a United Kingdom-wide referendum on the electoral system in 2011 which Cameron and other opponents of that electoral reform had defeated comfortably.

Cameron and the Conservatives were also bullish about the impending Scottish referendum (that the United Kingdom government had then recently agreed would happen and which took place in 2014).

Referendums must have seemed a doddle.

And, in any case, that there would be a referendum on any future European Union treaty ‘giving powers to Brussels’ was part of the law.

This general lack of constitutional seriousness can be evidenced in other examples from around the same period: in 2014, the Conservatives put forward an especially flimsy proposal for repeal of the human rights act and in 2015, Cameron sought fundamental reform of the house of lords just because of a defeat on a tax credits proposal.

The historical caution of the Conservative party in respect of constitutional matters was non-existent by the time of the leadership of Cameron.

And so eight years ago yesterday for Cameron to make a commitment to a referendum of such potential constitutional import was not a big thing for him or most of his party.

He probably put no more serious thought into the actual implications of a referendum defeat than he would have put into an essay on the topic of referendums on a PPE degree course.

In hindsight one can now see the serious consequences of such a referendum – not least how it can create a ‘mandate’ that undermines not only effective parliamentary scrutiny but the very doctrine of parliamentary supremacy.

But in 2013 this was not given a second thought, nor indeed much of a first thought.

*

A third context for the speech eight years ago yesterday is not provided by a thing, but an absence of a thing.

In the late 1980s, the 1990s and the early 2000s there was such a thing as ‘Euro-scepticism’.

(I know this because I happen to have been a Maastricht-era Euro-sceptic.)

This approach had two broad features.

First, it insisted that it was primarily about being wary of the direction of the European Economic Community (and then European Union).

In this, the guiding text was another speech by a Conservative leader, at Bruges in 1988, where Margaret Thatcher said:

“We have not successfully rolled back the frontiers of the state in Britain, only to see them re-imposed at a European level with a European super-state exercising a new dominance from Brussels.”

(Euro-sceptics, however, tended to ignore a later part of the same speech where Thatcher also said “Britain does not dream of some cosy, isolated existence on the fringes of the European Community. Our destiny is in Europe, as part of the Community.”)

The second feature of Euro-scepticism was that it was often a reaction to some new treaty advancement: Maastricht, Amsterdam, the (proposed) constitutional treaty, Lisbon.

But when this juggernaut of new treaties came to a halt with the treaty of Lisbon of 2007-9 – there have not been any such significant treaties since – Euro-scepticism lost the yin to its yan.

The development of the European Union entered into a settled stage.

And Euro-scepticism, as it had existed, served no purpose – the question became not about how the latest (supposed) treaty push towards integration should be countered but about membership itself.

There was now just a binary choice.

Any referendum would not be (and could not be) about any new treaty – as envisaged by the 2011 referendum legislation – because there were no new treaties.

The only thing left for a referendum to attach itself to was the question of membership itself.

And so a further context for the 2013 speech and the 2016 referendum is that – paradoxically – the end of substantial formal moves towards European Union integration at Lisbon meant that there was more risk that membership of the European Union was in question.

Those opposed to the European Union had now the cake of no further integration, and the supper of potential withdrawal.

*

There are many other contexts – geopolitics, migration, the credit crunch and austerity, and so on.

This post is not and does not pretend to be exhaustive.

But as with another post at this blog, on counterfactuals, this post avers that Brexit was not about just one bad decision.

There are many ways things could have happened differently and the United Kingdom could still today be in a post-Brexit predicament.

(And alternatively, there are no doubt certain decisions which could have led to substantially different outcomes – such as the decision by former prime minister Theresa May to rule out membership of the single market and the decisions by opposition leaders in late-2019 to nod-along with a general election.)

But the way Brexit did happen, at least in the short-term, followed a fateful speech eight years ago yesterday – when Cameron opened a box of tricks to play upon his contemporaries.

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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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With a Brexit deal in place, Cummings gone, Trump going, constitutional law may become less exciting – but constitutional law will be no less important when it is dull

19th January 2021

To warn against ‘complacency’ is a loaded statement, for no sensible person ever says ‘let us be more complacent’.

Similarly, no sensible person will say ‘I think we should be less vigilant’.

(Both statements are illustrations of the late Simon Hoggart’s ‘law of the ridiculous reverse’ (see here and here).)

But even though such warnings can be empty statements, citizens will still tend to drop their political guards.

In the United States, Trump leaves office tomorrow and his presidential term ends by automatic operation of law, and he faces a senate trial on his impeachment.

Trump has also lost access to his preferred social media platforms.

Here in the United Kingdom, the prime minister no longer has the constant push towards extraordinary constitutional and policy behaviour from former aide Dominic Cummings and other former advisors.

And the United Kingdom is now within a sustainable trade and cooperation agreement with the European Union, meaning the legal and policy uncertainty of a ‘no deal’ Brexit was mitigated.

These happenings are such that the temptation for liberals and progressives is to dance like victorious Ewoks and to rejoice as if the thaw has come to Narnia.

And, to certain extent, some bad things have now left the political space.

*

But, two things.

First, as the tidal wave of what happened in 2016 in both the United States and United Kingdom ebbs, we are left with an amount of constitutional wreckage.

In the United States, for example, there has been a substantial reconfiguration of the judiciary in a conservative and illiberal direction, the effects of which will last at least a generation.

For the United Kingdom, it has now found itself outside the European Union – with Great Britain if not Northern Ireland outside the customs union and the single market – a mere five years or so after the general election in 2015 where every mainstream party was committed to membership.

And as this blog has previously averred (here and here), it will take at least five to ten years before any application of the United Kingdom (or what remains of it) would be considered by the European Union, and it is likely any such application will not be considered for, again, a generation.

Both of these pieces of constitutional wreckage are now part of the order of things and liberals and progressives will have to get used to their existence.

*

And second, at least in the United Kingdom, there are still four ongoing attacks on constitutionalism – that is on the notion that there are things that those with state power should not do, as those things are contrary to constitutional principles, norms and values.

The first of these attacks is by the executive on the legislature – the ever increasing use of discretionary power and secondary legislation that is neither scrutinised nor supervised by parliament.

The second is the attack by the executive and its media supporters on the judiciary holding the government to account – the constant threats (in England and Wales, if not Scotland and Northern Ireland) to those who exercise the supervisory jurisdiction of the high court.

The third – related to the second – is the attack by the executive on the rights and liberties of citizens – either by the attempts to limit substantive rights under human rights instruments or, by procedural changes or the removal of funding, to render such rights as practically unenforceable.

And the fourth is the attack on the checks and balances generally in the United Kingdom’s constitutional arrangements, from the independence of civil servants, diplomats and government lawyers, to autonomous institutions such as the BBC and universities.

An aspect of this fourth attack is the deliberate placing of certain agents of the state beyond or above the law, such as in respect of war crimes or the actions of those engaged in intelligence.

*

Few of these ongoing attacks will result in ‘big ticket’ legal cases, where the government provokes and then (one hopes) loses some showdown in court.

These attacks will be quiet but still relentless, and their overall effect will be as significant as any ‘big bang’ constitutional reform.

And it will not be enough to keep pointing out these constitutional trespasses, as until citizens care about such abuses of power, the mere exposure of those abuses is of limited political consequence.

The government will just shrug and commit constitutional trespasses anyway.

*

With the likes of Trump and Cummings and a ‘no deal Brexit’ out of the everyday political space, constitutional law is certainly going to be less exciting.

And this is to be welcomed, as constitutional law should not be exciting.

Constitutional law should be dull.

It is not a good thing for the parameters of any political system to be constantly tested as part of partisan – or hyper-partisan – political debate.

But even if constitutional law becomes more dull, it will not be any less important.

It is when constitutional law is dull that the government is more likely to get away with things.

And it may not make much political difference for public-spirited donkeys such as this blog to keep tracking constitutional and other law and policy trespasses, but it is important that it is done anyway.

Being vigilant and avoiding complacency when things become dull is more difficult than when there is loud and bombastic excitement.

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Suppose the government wanted a culture war and nobody came? The law and policy of “protecting” statues and other monuments

18th January 2021

Another day, another cabinet minister in the United Kingdom seeking to provoke a culture war.

This time it is the secretary of state for housing, communities and local government who – notwithstanding his explicit cabinet-level responsibility for ‘communities’ – is soliciting political support in return for promoting a populist and divisive policy.

You may wonder what a minister in charge of such a department could find in that ministerial portfolio that would ‘play well’ and ‘own the libs’, but this minister has found one.

Statues.

In respect of law and policy, the two key paragraphs of the column are:

“Following in that tradition, I am changing the law to protect historic monuments and ensure we don’t repeat the errors of previous generations. Proper process will now be required. Any decisions to remove these heritage assets will require planning permission and councils will need to do so in accordance with their constitution, after consultation with the local community.

“Where that does not happen, I will not hesitate to use my powers as Secretary of State in relation to applications and appeals involving historic monuments where such action is necessary to reflect the Government’s planning policies. Our view will be set out in law, that such monuments are almost always best explained and contextualised, not taken and hidden away. More details will be set out in Parliament tomorrow.”

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One would think that in the midst of a pandemic and the effects of Brexit, there would be more important things for any secretary of state to do.

And given the ongoing strains on local government and the problems with housing, there must be more important things for this cabinet minister to be doing with scarce departmental resources and limited parliamentary time.

But no.

Statues.

*

But even if for some political reason for this to be a policy priority, the proposal makes no sense.

Statues are already protected by law.

First, they are protected in respect of theft and damage by the general law of the land, as can be shown with the prosecutions of those who put the statue of a slave trader into Bristol harbour.

Nothing in the announced proposals goes any further than the direct protections afforded by the criminal law.

Yet the article by the cabinet minister was uncritically promoted on the BBC and on social media as offering protection to statues from ‘baying mobs’:

One wonders if those at the BBC and elsewhere had actually read the secretary of state’s article, for there is nothing in the piece that goes to anything that would counter a mob, baying or otherwise.

The proposals are merely about adjusting the planning regime – presumably to make the lawful removal of such statues subject to even more conditions.

*

Which brings us to the second reason for the pointlessness of this proposal.

Most statues of any note are already protected as listed buildings and so are subject to additional conditions in respect of their removal or modification.

Take for example, that statue of the Bristol slave trader.

As Professor Antonia Layard sets out in this fascinating and interesting article:

“In 1977, the statue was listed as a grade II building (No. 1202137). This is the lowest category of listing, identifying it as a building “of special interest, justifying every effort to preserve them” […]

“Once listed, s7 of the Planning (Listed Buildings and Conservation Areas) Act 1990 imposes restrictions on works, requiring authorisation to alter, extend or demolish the listed building if this would affect its character as a building of special architectural or historic interest. Alteration, extension or demolition (s8) can all happen with consent but there is no express provision (perhaps inevitably) for moving a sculpture. When deciding whether to grant consent for a change, the Secretary State (or planning inspectors acting on his behalf), the Secretary of State or anyone acting on his behalf must have special regard to the desirability of preserving listed buildings, their setting or any special architectural or historical features they possess before making a consent order (s26F P(LBCA)A 1990).”

The new proposals of the secretary of the state appear to go no further than powers that they already have in respect of listed buildings, including changing their setting.

The secretary of state will know this, or should know this – and their department will certainly know this, as it is the department responsible for considering applications for such consents.

There is an argument, as Professor Layard’s article sets out persuasively, that statues should not be under the same conservation regime as other structures, as there may be different considerations for removal of a statue of, say, a notorious figure than for a house.

But that is certainly not the argument being put forward by the secretary of state.

*

If promoting such a proposal may be seen as a waste of time by a secretary of state, it may equally seem a waste of time for a blog such as this to spend time setting out the legal and policy reasons why such a proposal is daft and unnecessary.

Don’t feed the trolls, and so on, even when the troll is a secretary of state hoodwinking the BBC and others.

But it is still important that such proposals are patiently examined on their merits and shown to be wanting – as a reminder and a register to the rest of us that these things are not normal nor appropriate.

What is a waste of time is to just meet provocation with outrage, to join in as a combatant in a culture war.

And eventually there may be a realisation that there is no longer political merit is promoting such divisive populist policies – and indeed, in early 2021, the approach here of the secretary of state seems rather old hat and 2016-ish,

Suppose the government wanted a culture war and nobody came.

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Why prime ministers and ministers should read the legal texts for which they are responsible – and not leave it to summaries and advisors

16th January 2021

There are news reports that the prime minister has not read the trade and cooperation agreement with the European Union – and nor had the fisheries minister before it was agreed.

And this follows the former Brexit Secretary who once admitted he had not read the thirty-five page Good Friday Agreement – even though that document was of fundamental importance to the shape and outcome of Brexit.

https://twitter.com/EmmandJDeSouza/status/1306319236583903234

*

One reaction to these admissions is to say that it is not actually necessary for ministers to read such legal texts – that ministers are usually not specialist lawyers, that such engagement could lead to misunderstandings, and that it would not be an efficient or sensible use of their limited time.

And that it is perfectly reasonable, and indeed preferable, that ministers rely on the advisers to summarise and explain these legal texts instead.

For such reasons, the argument goes, it is not fair to criticise ministers for not reading legal texts for which they are responsible or, in the case of the Good Friday Agreement, fundamental to their ministerial roles.

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Many of those who hold this view are themselves advisers or others who have briefed and summarised such legal texts for ministers and other lay people.

This blogpost avers that this view is not correct and that, for the following three reasons, any minister should be on top of the legal text for which they are responsible or is relevant to their roles, and that ministers should not rely on advisers and their summaries.

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As a preliminary point, however, there is something that this blogpost is not contending.

A minister should not just be left alone with a legal text and be expected to engage with it as an experienced and specialist lawyer.

Even ministers who happen to be lawyers may not be experienced or specialised in the relevant field.

This post is not suggesting that ministers become their own lawyers.

This post instead is putting forward the view about how ministers should approach legal texts as an active (rather than as a passive) client of their legal advisers.

How – in accordance with the old adage – advisers should advise and how ministers decide.

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The first reason is that any intelligent and diligent lay person (that is, a person who is not a specialised lawyer in a relevant field) can engage with a legal text.

No legal text is so obscure – or sacred – that it requires a solemn priesthood of lawyers to interpret its import to the uncouth.

Although parts of some legal documents can look as impenetrable as a computer screen suddenly full of source code, all legal documents will have basic terms, for example: party [x] shall do [y] and if [y] does not happen, then [z] happens instead.

Legal instruments create rights and obligations, and they provide for consequences of those rights being exercised or of those obligations not being fulfilled, and they provide for allocations of risk of certain things happening or not happening.

This is not mysterious stuff – but the very stuff of relationships and powers and conflicts – indeed, it is the basic stuff of politics itself.

And for a minister, a legal text for which they are responsible will set out in hard form these relationships and powers, and how any conflicts are to be resolved.

A minister should therefore engage with such a text and ask their lawyers and other advisers: What does this provision mean? What is the consequence if [a] happens? What is the consequence if [b] does not happen and so on.

In response, any (genuine) expert will have no difficulty in explaining the answer in plain language – or in admitting that something may be missing.

In my experience, the best lay clients are not the ones who pretend to be lawyers – but the ones who will test their lawyers to explain any instrument or other legal text.

Often the lay client, who will usually be approaching the text in a far more practical, street-wise way than any adviser, will spot many possible imprecisions and omissions.

After all, the lay-client is the one who will have to deal with the consequences of how that instrument works in practice.

And this exercise in active engagement can only be done by direct reference to the legal text – not some summary at one or two stages removed.

Like a decent literature student who knows not to rely on York Notes, and a decent law student who knows not to rely on Nutshells, any intelligent and diligent lay client knows there is no substitute to knowing the primary materials.

And again, this is not the lay person pretending to be a lawyer, but them fulfilling their proper role as a client.

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The second reason is that is that summaries are sometimes not reliable texts, notwithstanding the best intentions and professionalism of the adviser who prepares that summary.

This is the nature of summaries: you are relying on another person to identify and set out all the key issues – and such summarisers are not infallible.

But regardless of fallibility, a summary of any legal instrument does not necessarily deal with all the questions a lay client can have when reviewing the terms of that instrument.

And this is because a legal instrument deals (or may have to deal) with dynamic situations where different parts of the instrument can be engaged at once and interact- and any summary is linear.

For example: a thing could happen which is simultaneously a breach of obligation (a), triggers remedy (b), which is subject to a limitation (c), giving rise to process (d), entitling the party not in breach to options (e), (f) and (g).

Different fairy lights can be flashing all at the same time.

No summary can ever equate to having a practical grasp of how a legal instrument works in foreseeable situations.

And this grasp is perfectly possible for an intelligent and diligent lay client – in dialogue with advisers.

This is not to say summaries are redundant – but that they are inherently limited as a means of conveying a robust understanding of any legal instrument.

(And this assumes the summariser being a professional person with relevant experience the best intentions – advisers with their own biases and interests or lack of experience can make the summaries even less of an adequate substitute.)

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The third reason is political.

The doctrine of ministerial responsibility means that it is the minister – and not the civil servant, government lawyer or other adviser – who is responsible to parliament and to the public for decisions.

This means that parliament and the public look to the minister to be the one who makes decisions.

Many ministerial decisions are necessarily made on the basis of summaries – one or two pages of a recommendation in those famous red boxes.

But when the minister is to bind the United Kingdom in an international agreement, with profound consequences for every citizen and business, that duty cannot be offloaded and outsourced to advisers.

A refusal or unwillingness to engage with the primary materials also can lead a minister to wishful-thinking or even denialism – that such-and-such will not really lead to a trade barrier in the Irish Sea and so on.

Such evasions are far less possible when you see things in their black-and-white typed form, and you have had explained to you what the meaning and consequences are of that black-and-white typed form.

There is also, of course, the natural tendency of people with power to rely on others only then to blame them when things go wrong.

Decisions in respect of the United Kingdom’s obligations are not for advisers and officials to make – ministers have to form their own view, for it is that view for which ministers are responsible.

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A minister – even a prime minister – is just as capable as any intelligent and diligent lay client as engaging directly with a legal instrument, and in forming their own understanding of that instrument.

Summaries and reliance on advisors are not substitutes for knowing your way round the primary materials.

And given the doctrine of ministerial responsibility, and the immense importance of many legal international agreements, ministers have a special responsibility to properly understand what they are signing us up to.

Advisers advise, and ministers decide – but some ministerial decisions require far more than reliance on advisers.

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