The Executive Power Project: the extraordinary resignation of a senior civil servant

29th February 2020

What this blog calls the “Executive Power Project” – in affectionate mockery of the so-called “Judicial Power Project” – is not just about attacks on an independent judiciary.

The Executive Power Project is about all the current concerted attacks on those elements of the state that check and balance executive power.

And so it is as much about the attacks on the impartial civil service as it is about the assault on the courts.

This morning we have had a further manifestation of the Executive Power Project – the resignation of the senior civil servant at the Home Office, Sir Philip Rutnam.

His piece to camera announcing his resignation is extraordinary, and should be watched in full (and it can be read here).

(From a defamation law perspective, it is striking how carefully drafted this statement is – the “I do not believe her” stands out especially – and if Patel countersues she will struggle to do on this wording.)

It is a measure of how rotten this government is that it can make a senior home office civil servant seem sympathetic, even a hero.

The Home Office routinely is brutal and excessive in the administration of its duties.

But what Rutnam has done today is admirable: he could have, as he alludes, taken the payout and signed a non-disclosure agreement.

Instead he has made the matter public and, he says, will sue to uphold his rights at a public tribunal.

In the days to come, his personal reputation will be trashed – just as attempts to do so when Sir Ivan Rogers resigned – and he appears to have factored that into his decision.

But beyond that knee-jerk trashing (which will be facilitated by the very free press that is also a target of the Executive Power Project) there is the issue of the extent to which ministers are now placing civil servants and diplomats in untenable positions.

For this resignation to be so public, and for the the follow-on suit to be just as public, means that the minister-official tensions are now hardening into contradictions.

Even in these strange political times, this is an important and worrying event.

**

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I will be spending less time on Twitter in 2020 as I want to move back into longer-form writing – in particular examining and commenting on key texts and other developments, and looking at attempts by the executive to take power from elsewhere.

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The Executive Power Project

28th February 2020

A blog, like Winston Churchill’s puddings, should have a theme.

Otherwise there is the risk that a blog drifts or (worse or better, depending on one’s view) is not updated at all.

This blog will now, I think, have two themes.

*

The first is a detailed – almost forensic – look at key documents relating to law and policy.

This is because independent blogging (with the ability to freely link to sources, non-irksome comments, and with no word counts) is a natural medium for such exercises.

And I have started towards this by identifying two key Brexit texts which will be examined closely in post to come (to which you can add a third and fourth, the United Kingdom’s Command Paper on the upcoming negotiations and this speech by Michel Barnier).

*

The second is what I will call (with affectionate mockery of the “Judicial Power Project”) the “Executive Power Project”.

My column at Prospect magazine this month sets out one of my general views on this: that currently there is a period of relative judicial lack-of-activism, and that behind the current “something must be done about the judges” moral panic is nothing more than a turnip-ghost.

The revolt against the judges in the United States and Poland, and the United Kingdom, and elsewhere, is little or nothing to do with actual cases and judgments.

It is instead about removing or discrediting those independent checks and balances which prevent those with executive power from easily getting their way.

As such the attacks on the independent judiciary need to be seen as akin to the attacks on the impartial civil service and and diplomatic service, the free press, public service broadcasting, and those parts of the legislature beyond the executive’s easy grasp.

The one uniting factor in all this is an attempt by those currently with executive power to remove or discredit anything that can counter them.

Another part of this is the invocation of heady snappy legitimising phrases (such as the “Will of the People”, “Taking Back Control”, “Get Brexit Done” and “Restoring Sovereignty”) that are intended to over-ride any opposition or concerns.

Here one is reminded of the words attributed to Madame Roland as she was led to the guillotine, “O Liberté, que de crimes on commet en ton nom!” (O Liberty, how many crimes are committed in thy name!) or Stephen Dedalus’s wry “I fear those big words which make us so unhappy”.

For the authoritarian, phrases and concepts that confer legitimacy (whether leftist, rightist, centrist or anything else) tend not to be the reason for what they do but their excuse and pretext.

And the language of populism suits the authoritarian perfectly: for who can be against the will of the people?

*

So, rather than commenting on anything and everything (and thereby nothing in particular), this blog will tend to focus on these two themes.

It may not make much (or any) difference but it seems a good thing to do anyway.

**

Thank you for visiting this law and policy blog.

I will be spending less time on Twitter in 2020 as I want to move back into longer-form writing – in particular examining and commenting on key texts and other developments, and looking at attempts by the executive to take power from elsewhere.

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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.

*

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.

*

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.

*

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.)

*

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”.

*

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

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

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

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

The United Kingdom government is still not taking Brexit seriously.

**

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

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Two new texts on Brexit

26th February 2020

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

*

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

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

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

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

*

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

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

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

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

**

Thank you for visiting this law and policy blog.

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

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

6th February 2020

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

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

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

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

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

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

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

There has to be a positive case.

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

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

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

**

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

4th February 2020

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

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

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

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

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

*

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

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

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

*

But the United Kingdom government did not produce similar guidelines.

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

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

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

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

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

*

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

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

A speech that did not mention Brexit once.

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

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

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

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

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

*

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

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

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

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

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

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

*

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

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

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

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

**

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The hidden wiring of Brexit is keeping Brexiters safe from falling

3rd February 2020

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

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

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

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

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

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

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

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

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

So these tweets come as a disappointment.

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

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

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

But there was a Brexit deal.

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

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

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

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

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

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

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

That hidden wiring may not always be there.

**

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

31st January 2020

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

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

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

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

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

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

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

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

*.

The referendum question back in June 2016 was:

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

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

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

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

The referendum question as posed was on membership alone.

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

*

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

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

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

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

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

There is now a clean battlefield.

And that is because the mandate has been discharged.

*

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

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

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

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

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

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

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

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

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

*

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

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

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

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

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

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

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

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

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

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

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

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

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

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

**

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Brexit, public procurement, and Dominic Cummings

9th January 2020

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

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

*

To start with: what is public procurement?

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

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

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

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

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

*

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

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

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

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

*

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

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

The principles of public procurement are straightforward and commendable.

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

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

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

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

*

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

Who could possibly be against?

Well.

There is a difference between neat theory and messy reality.

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

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

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

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

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

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

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

For SMEs to bid for such contracts routinely is impossible.

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

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

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

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

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

*

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

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

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

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

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

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

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

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

*

So what can be done?

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

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

*

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

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

(Shudder.)

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

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

*

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

(Oh dear.)

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

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

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

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

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

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

Public bodies rarely default on contract payments.

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

And they often get away with this for two reasons.

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

Such contract lawyers tend to work in the private sector.

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

*

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

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

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

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

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

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

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

*

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

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

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

*

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

But this will not solve all the problems.

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

**

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The reasons why Remain was defeated – a contemporaneous view

7th January 2020

Historians and others pundits will spend many years discussing and disputing why and how Remain lost.

They will have access to documents and private information not available to onlookers at the moment, and so they may be able to provide better explanations than any of us currently can.

That said, there is a certain value in setting out how things looked at the time, as contemporaries can often be aware of many things that a historian can never recapture.

And so this is a brief post setting out the reasons why Remain lost, as they seemed to an observer at the time.

(I will below use Remain(ers) and Leave(rs) as shorthand, and I hope readers can see beyond the shorthand to the substantive points.  If your only objection to what follows is the shorthand, then this really is not the post for you.)

*

To begin with, my view is that Remain lost rather than Leave won.

After over forty years of membership of the EEC/EU, there should have been a more compelling Remain case made at the 2016 referendum.

And even after the narrow referendum result for Leave, the lack of clue of Leavers about what to do next meant Remain still could have secured a further referendum with a Remain option.

But there were (again, it seems to me) three reasons why Remain still failed.

First, Remainers became accustomed to Leave failures – and so became complacent.

There was mistake and mishap after mistake and mishap by the May and Johnson governments.

It often appeared that Brexit would fail all by itself, just because of the accumulation of pratfalls and folly.

There were even three extensions to the planned departure date, and so it appeared that there would always be another extension.

Second, the focus and efforts of Remainers were too often away from the political battle.

There was crowd-funded court case after court case – some worthwhile (for example the Miller cases) and others far less worthwhile.

There was excellent investigatory journalism, exposing the irregularities of the various Leave campaigns, followed by regulatory and police investigations.

There were also marches and petitions and hashtags.

But none of this led to any political breakthrough.

The majority of MPs remained opposed to a further referendum and, in the 2019 general election, little of the Remain passion was converted into concrete political achievement.

Third, at the crucial political moment – just over two months ago, but now an age  away – the Labour and Liberal Democrat parties enabled a general election which neither party turned out to be in a position to exploit.

Neither party were required to consent to this, but they did.

Until mid-November 2019 it was still plausible that a further referendum could be forced, with the prospect of a Remain victory.

The Labour leader even proposed that in return for a being able to head a government there could be a referendum where Remain would be an option.

But the window of opportunity was closed, and then boarded-up.

*

It was not inevitable that Remain would lose either the 2016 referendum or the campaign for a further referendum before any departure.

Indeed, the idiocies and antics of Leavers in government provided far more opportunities for Remain than Remainers perhaps deserved.

Yet Remain still lost.

Of course, many Remainers will be quick to blame and accuse others.

And they are right, in that Leavers were and are culpable in many ways.

But both the 2019 general election and the campaign for a further a referendum were there for the taking.

Brexit was not inevitable at any point before the December 2019 general election, and the only reason it is now virtually certain is not because of any genius move by Leavers but because Remain let Leave win.

**

Thank you for visiting my blog.

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

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