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

2nd June 2021

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

Then the chair of the public accounts committee said:

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

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

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

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

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

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There is no mention of the royalty in the announcement.

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

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

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

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

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

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

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

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

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

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

And prestige procurement projects do tend to have problems.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The envisaged timings also seem rather ambitious.

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

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

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

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

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

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

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

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

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

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

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

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

*****

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Cock-up vs conspiracy – and law and policy commentary

1st June 2021

Swapping human beings for gods, some people like to see an intelligent design behind anything extraordinary in human affairs.

A thing happens – out of the ordinary course of events – and that thing requires (even demands) a special explanation of how certain people intended it to happen and made it happen.

And sometimes – conspiracies actually do happen.

To always dismiss conspiracies is as misconceived as always seeing them in existence.

But conspiracies are (in my view and experience) rare, as they often require a group of people to act effectively but silently in concert in an emerging and often novel situation.

And so I am not a conspiracy theorist by inclination.

Conspiracies do happen – but often because there has been a cock-up, as it is usually only with a cock-up that a group of people are sufficiently focused and motivated to act silently in concert. 

(By ‘silently’ I mean, with no visible traces outside of that concert, as that would undermine the purpose of the conspiracy.) 

Yes, of course, everyone knows (who should know) Hanlon’s Razor – that a thing should not be attributed to malice that can be attributed to stupidity.

But that is not quite the same – not all conspiracies are malicious (often they are defensive), and not all cock-up result from stupidity but because, to invoke another law, when things can go wrong they will go wrong.

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The particular reason I mention this is, of course, the upcoming Daniel Morgan report.

Others following the independent panel inquiry have put forward possible explanations for why each investigation and prosecution collapsed in respect of the 1987 murder of Morgan.

I do not have any plausible theories – still less any knowledge – as to who was involved when and how.

This is not just safe libel-speak – I have no idea.

It may well be, for example, that there is a plausible and mundane explanation for why each successive investigation and prosecution collapsed.

But such a pattern of failed investigations does require its own investigation – and one of the purposes of the upcoming report is to provide a document-based understanding of what happened and who was involved.

There may be an elaborate conspiracy or sequence of conspiracies – or there may be a sequence of mistakes and improvisations – or there may be a mixture of both.

The best thing to do is to see what evidence is put together by the independent panel, and to see where there that evidence takes us.

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Podcast – discussion with Alex Andreou on the upcoming Daniel Morgan report and its potential significance

31st May 2021

In this podcast released today (but recorded last Friday) I discuss with Alex Andreou the significance of the upcoming Daniel Morgan report – and also the recent attempts by the home office into bullying the independent panel.

Andreou is a superb podcast host, combining a formidable intellect with a luxurious, melodious voice (in contrast to my high-pitched Brummie Wednesday Addams) – and we hope that this will be a useful primer in the run-up to the publication of the report expected in mid-June 2021.

You can hear it on one of the links here.

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Some early reviews:

https://twitter.com/JonathanMolesUK/status/1399319292362035201

 

Hyper-partisanship and the lack of constitutional self-restraint are the twin poisons attacking our bodies politic

30th May 2021

Some thought it was all over when Joseph Biden won the presidency – Trumpism was defeated and there could be a return to political normality.

But Trumpism is continuing – even without the presidency and indeed even without access to Twitter and social media.

Trump has gone, but Trumpism has not.

This can be seen in the failure of sufficient Republicans to support a commission to report on the attempted insurrection on the 6th January 2021.

The practical reason for this failure appears to be the effect such a commission and its report will have on the American mid-term elections.

This hyper-partisanship and the lack of constitutional self-restraint is not good for the sustainability of the body politic of the United States – just as similar hyper-partisanship and lack of constitutional self-restraint is not good for the United Kingdom and other (hitherto) liberal democracies.

It poisons the well, it pulls the rug, and so on.

The immediate political gains are at the possible expense of longer-term constitutional viability and sustainability. 

And although constitutions can be robust and rugged old things – they are not invulnerable – and it is not inevitable that liberal constitutionalism will always win out.

Brace, brace.

Democracy vs Liberalism – the worrying but significant 2014 speech of Viktor Orbán

29th May 2021

One of the more complacent views of the last few decades is that there is a necessary link between democracy and liberalism.

The notion that if you believe in one then you believe in the other.

And, in turn, there is the converse view – that illiberals will tend to be undemocratic, if not actively anti-democratic.

This is assumption is evident in a spate of books over the last few years about the death of democracy where, if you read carefully, they describe the (possible) death of liberal democracy.

For – and this is still a shock for many – there is nothing necessarily liberal about a democracy.

It is possible – and indeed not uncommon – for a conservative bloc to mobilise sufficient support to prevail in elections.

There can sometimes even be sufficient conservative support for illiberalism to be majoritarianism.

Liberal democracy is only one form of democracy (and, also, of liberalism).

The notion that illiberals are also undemocratic, if not anti-democratic, is a comforting notion for the superficial liberal.

The truth is that in any democratic system there will be a great deal of opposition to liberal views.

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Here it is instructive to read this 2014 speech (in translation) by the Hungarian prime minister Viktor Orbán – who visited the United Kingdom this week.

It is a speech that should be read in full by any liberal and anyone else who wants to understand the illiberal turn in modern politics.

It is perhaps, in its way, one of the most politically significant speeches of recent years – though what it signifies is not pleasant.

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One of the things that stands out is in the speech that it is openly – explicitly – ‘illiberal’.

An exposition of liberalism is set out (and not altogether inaccurately) and then critiqued.

This dismissal of liberalism is unapologetic.

It is blatant, with no sugar-coating.

Orbán is an illiberal and he knows it, and he claps his hands.

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Another thing that stands out is that – unlike many Western (supposed) defences of (and apologies for) liberalism, it is not flimsy.

It is an articulation of an illiberal position.

The position being articulated is vile and wrong, but it is not superficial.

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A third thing that stands out, of course, is that it does not really explain, still less justify, the specific assaults on civil society in Hungary of his government – it is a speech which largely stays in the realm of the abstract.

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And the fourth thing which is striking about the speech is that – on the face of it – it is not an undemocratic speech – it is the speech of a politician who seems confident that there will be sufficient political support for illiberalism within a democratic system.

It is even a speech of a politician who does not see membership of the European Union as being incompatible with his illiberalism.

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This blog is written from a liberal, constitutionalist perspective.

But as a practical blog, it is not enough to disdain illiberalism, let alone deride it.

As the old saying goes: know your enemy.

Scoffing at Orbán – just like sneering at Donald Trump or Boris Johnson – is not a complete political answer to the challenges presented by modern illiberalism.

As long as these individuals and their parties can mobilise their bases, they will use political means to defeat or hinder liberalism, and they will claim to be democratic in doing so.

The ‘will of the people’ is rarely invoked by those who respect the wills of individual people.

And what happens when liberal democracy is, well, trumped by democracy itself?

*****

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Did the Home Office blink? – the significance of today’s announcement of a date for the Daniel Morgan report

28th May 2021

Today came the news that the publication of the report on the Daniel Morgan independent panel should be on 15 June 2021.

This is the report into the 1987 death of Daniel Morgan, the collapse of the many subsequent investigations and prosecutions, and the existence of (and the relevance of) any corrupt relationships between the police, the private investigation industry and the press.

The statement of the panel is here and should be read in full. 

This is, of course, welcome news.

It ends the stand-off between the panel and the home office – and, on balance, the home office has given way more than the panel.

The late intervention of the home office – to demand a last-minute ‘review’ of the report – is now unlikely to frustrate the publication of the report.

Delay and blocking

This statement means that, unless something happens to prevent it, there is now a fixed, imminent date for publication.

This should prevent the report being delayed indefinitely by the home office sitting on it during this (supposed) review.

If the objective of the home office was to provide room for delay (or even prevent) the publication of the report, then that objective looks like it has been defeated.

There is a little wriggle-room for potential further delay – but not as much as if there was no date set at all.

Redactions

The statement also deals with the issue of any home office redactions.

Any redactions that the home office insist upon will be identifiable – and so, it would seem, contestable in court.

Each redaction would be an action by the home secretary that could – at law – be looked at by the high court for its reasonableness and relevance.

Any redaction would thereby not necessarily be the end of the matter – but just the prelude for litigation.

The redactions cannot just be silently made, with no one to know.

Again this is a set-back if the objective of the home office was to have room to make such silent redactions.

Forewarnings and leaks

If, however, the home office had as its objective that it would be forewarned of the content of the report, this objective has been achieved.

This means that if – and it is only an ‘if’ – there is anything politically significant in the report then the home office will not have a shock and so will not be bounced.

It also means there is the possibility of leaks from the home office – perhaps to the media – in the days before 15 June 2021.

This is notwithstanding the controlled conditions for the review of the report – which will remind those with longer memories of Robin Cook and the Scott report.

Making sense of the Home Office intervention

As this blog has already averred, there appears to be no good reason for the late home office intervention.

The purported reasons do not add up – and they appear to be improvised and cynical.

As I set out in detail here, the choice of ‘national security’ and ‘the human rights act’ as grounds appear to have been for providing the maximum litigation cover for any home office delay, and not because of any genuine concerns.

I am not a conspiracy theorist by inclination – conspiracies do, of course exist, but usually to hide cock-ups, as only then will a number of people have the motivation and focus to act in concert.

As such I do not think there is any conspiracy between the home secretary and others to try and block or delay or gut the report.

The home secretary may well be (as a lawyer would say) on a frolic of her own in all this, without contact with anyone else with an interest.

It may well be that the home secretary simply did not like the idea of something being published by an independent panel beyond her control or involvement.

But whatever the true motive for the home office’s late bullying intervention, the statement today means that it is more likely than not that we will see the report published in two weeks, and possibly with few if any redactions.

The panel and its lawyers should be commended for facing off this illiberal and misconceived intervention.

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The cynical reason why the Home Office may be invoking ‘National Security’ and the “Human Rights Act’ so as to delay publishing the Independent Panel Report on Daniel Morgan

27th May 2021

There is a stand-off between the home office and the Daniel Morgan independent panel over publication of the panel’s report.

From the perspective of the Morgan family this is unfortunate – and even heart-breaking.

It is a horrible situation.

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The report will be important – whatever its content – for three reasons.

First: it will be nearest we get to a definitive account of the circumstances of the 1987 death of Daniel Morgan, the private investigator murdered in south London.

Second: it will also set out, as far as possible, how and why investigations and prosecutions kept failing, again and again – and the relevance (if any) of the relationships (corrupt or otherwise) between the metropolitan police, the press and the private investigation industry in explaining those failed investigations and prosecutions.

And third: it will be the nearest we get in practice to ‘Leveson 2’ – the general inquiry into the relationships between the metropolitan police, the press and the private investigation industry, an inquiry which has now been cancelled by the current government.

So far, the coverage of hacking and the other (so-called) ‘dark arts’ have given a lop-sided view of what happened, focusing on the press and newsroom culture – but the press was the customer in the wrongful trade in personal information at the relevant times – the ‘demand-side’.

What is still obscure is the ‘supply-side’ of what happened – especially the role of the police and the private investigators.

Even without the particular circumstances of the death of Daniel Morgan and its aftermath, it all would be an extremely complicated world to understand.

So it is no surprise that panel has spent since 2013 putting this report together.

And now the report is ready to be published.

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But.

The report has not been published.

The home office is insisting that they review the report before publication and they will not commit to a date for publication.

Under the terms of reference for the panel it is envisaged that the home secretary arrange for the report to be placed before parliament – and that would be the means by which the report would then be published and thereby enter the public domain.

The understanding is (though I am aware of different opinions) is that by placing the report before parliament that it would thereby acquire absolute privilege – which means that nobody can be sued for defamation in respect of the content of the report.

Whether or not this legal analysis is correct, it was certainly envisaged that his would be the procedure and – regardless of the legalities – it is certainly the fitting way for such an important report to be dealt with.

Not many reports are solemnly placed before the parliament by the home secretary.

And although some say the report should just be leaked, this is one report that – perhaps more than any other – should be published ‘by the book’ – as it is ultimately about the rule of law itself.

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What is the reason for the current stand-off?

We appear not to have the true reason – but we do know this because the reasons so far given do not make sense.

According to one blogpost – which I cannot vouch for as I did not write it and I have not seen the underlying evidence for its assertions – there has been a succession of home office excuses for the delay.

Whether or not there have been earlier home office excuses for the delay, the current reasons are that the home secretary needs time to review the report because of the home secretary’s responsibilities in respect of national security and under the human rights act.

Balderdash.

Codswallop.

Flapdoodle.

Utter twaddle.

These cannot be serious grounds for the following reasons.

First, the home office do not yet have a copy of the report and so cannot know in advance whether a report into the circumstances and aftermath of a murder in a south London carpark in 1987 raises any current national security and under the human rights act issues in 2021.

Second, the report has already been vetted by the metropolitan police legal department who would have been able to identify any such issues – and indeed the home secretary would presumably have to rely on the metropolitan police for this supposed review, given the report deals with police operational issues.

And third, the panel has itself ensured that it has had experienced and extensive legal advice – and have followed the usual ‘Maxwellisation’ process of ensuring what is to be published would be legally sound.

Indeed, the terms of reference envisaged that the emerging findings of the inquiry and the final report could be released directly and freely to the Morgan family, and this provision would not make sense if there was a prior formal home office review stage.

The excuses of of national security and under the human rights act are improvised and artificial excuses to justify delay – and one suspects that there is not a single person inside or outside the home office who has a sincere belief in these excuses.

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But why these two particular excuses?

At first, it seemed a puzzle.

My best charitable guess was perhaps the home office simply did not want to set a precedent for immediately publishing reports that were outside the scope of the inquiries act.

Yet that did not explain why these two particular excuses were selected.

And then it became obvious.

This is all about litigation – and about providing cover for litigation risk.

National security is one issue that the courts will invariably defer (with nods) to the home office – and if the home secretary makes an assessment then even the current president of the supreme court will say this has to be accorded ‘respect’.

And the human rights act point, a clever one, is that under article 2 of the European convention there is a ‘right to life’ which again, once invoked, means that the courts are unlikely to conduct any balancing exercise.

The combination of these two grounds mean that the home office would be able to resist any judicial review of their delay – for government lawyers would just need to say national security and the human rights act, and a court would be unlikely to intervene.

And – and this is crucial – it also works the other way round: for if the panel threatened to publish the report itself then the home office could use the same two grounds for obtaining an injunction against publication.

Indeed, one suspects that the home office lawyers are currently insisting on formal undertakings from the panel that the panel will not publish the report directly.

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If my reasoning here is correct – and I cannot think of any other plausible explanation for why the home office has invoked national security and the human rights act – then the home office and its lawyers are engaged in a cynical exercise of making the delay to be litigation-proof.

Such gaming of the judicial process is not necessarily an abuse of process – indeed civil lawyers often use such tactics and even have a big white book packed with ways by which parties can win cases other than on the actual merits of the case.

But if such tactics are legally permissible that does not make them normatively acceptable.

And in these circumstances, such tactics are nothing other than disgusting. 

There is no good reason for this delay – and the brother of Daniel Morgan should not have had to tweet this.

The independent panel report should be published without any further delay.

*****

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How to treat the parliamentary evidence today from Dominic Cummings

26th May 2021

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

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

The approach I would recommend is as follows:-

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

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

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

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

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

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

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

Third – be aware also of motivation.

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

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

And fourth – there is the issue of honesty.

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

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

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

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

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

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

Everything he said may be true.

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

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

*****

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Why ‘how to regulate’ guides are invariably nice and colourful but impractical

25th May 2021

It would be unfair to name the particular public body responsible but a new guide to regulation has just been published.

The guide is lovely to look at.

Pages and pages of colourful graphics, with boxes and arrows.

A well-meaning sequence of platitudinous or vague statements are made which together are to be taken as a guide to good regulation.

The guide is pretty and clever and earnest.

And the guide seems completely useless.

One suspects no better regulation will be made because of it, nor any better regulatory decision.

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The problem is not that, on its own terms, it is wrong.

On its own terms, the guide is quite wonderful.

Like a self-contained and lovingly illustrated code in some invented language like Dwarvish or Klingon or Dothraki.

The obscure illuminated manuscripts of our public policy age.

But the guide – and many guides like it – may not correspond to reality.

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The essence of regulation is practical, not theoretical.

The basic question is: what behaviour or outcome would happen (or not happen) but for the regulatory measure?

How will things actually be different (or the same) because of the intervention (or lack of intervention)?

And will those things really be more desirable than otherwise would be the case?

If the regulatory measure – either a rule or a decision – does not in practice affect behaviours or outcomes as desired, then it may be many things but it fails as a regulatory measure.

So: the best guide to regulation is work backwards from what is happening (or otherwise would happen) and see how that behaviour or outcome can be made to be different (or forced to stay the same) in a way desired.

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The problem with flowchart-based – and also with checklist-based – regulation is that it makes the regulator feel that something is being done.

Like the old joke about the driver who always looks in the rear-view mirror before pulling out – it does not matter what is coming, as long as they have looked in the rear-view mirror they can proceed to pull out.

In so many fields of human activity – from drug-taking to sex work to public health rules for coronavirus and electronic surveillance and public procurement (just to take a few public policy bug bears) – there is a belief that there must be regulations, as something must be done.

The problem with colourful guides on ‘how to regulate’ the process takes priority over practical effect and implementation.

There should perhaps be a new regulator to prevent flowchart-based regulation.

Perhaps it can be called OffChart.

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Why the Daniel Morgan Independent Panel legally can and should disclose the full report to the Morgan family at the same time as to the Home Office

24th May 2021

Today in parliament there was a short debate on the delays in the report in respect of the murder of Daniel Morgan, why there were successive collapses of investigations and prosecutions, and the significance of potential corrupt relationships between the press, the police and private investigation industry.

The link for watching the debate is here – and it is worth watching in full.

You will rarely see a junior minister so obviously unconvinced by their own brief – and there is an apparent contrast between her conciliatory manner and the content of what she had to read out.

(It is not unusual for junior ministers to stand in for cabinet ministers for these urgent debates – though it would have been appropriate for the home secretary to have been there.)

You get the impression that nobody – inside or outside of government – is actually convinced of the ‘national security’ and ‘human rights act’ points being taken to justify the home office’s position.

Indeed, both points seem to be ‘lines to take’ – formulated by some clever central government lawyer – as giving wriggle-room to the home office.

But neither contention adds up.

The panel report is not under the Inquiries Act 2005 – and so the exceptions under section 25 do not apply.

The most charitable explanation I can can conceive is that the government wants to avoid creating a precedent for other non-2005 Act reports being free from the same exceptions.

There are more plausible, less charitable explanations.

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The reason why the report being presented to parliament is legally important (as well as constitutionally appropriate) is that it will give the report absolute privilege in respect of defamation when it is published to the general public.

And although a publication of the report directly to the public by the panel without going through the home secretary and parliament would be an exciting event – and no more than the home secretary deserves – it would not be legally prudent. 

But it is worth looking at the terms of reference carefully on this point – as there may be another way forward in the face of home office obstinacy.

*

The terms of reference are here – and they should be looked at in full.

Paragraph 6 indeed provides:

‘The Independent Panel will present its final Report to the Home Secretary who will make arrangements for its publication to Parliament.’

But one sentence in the following paragraph 7 is also interesting:

‘In the meanwhile, it is also envisaged that the Panel will brief the family incrementally, both on the progress of its work and on its emerging findings.’

And so is also paragraph 4(c):

‘…the Independent Panel will…brief members of the family through a final report which would be made available first to the family and then to the public at large’.

In other words: it was envisaged in the terms of reference that, although publication to the world was to be done through the home secretary and parliament, it was open to the panel to share its findings and indeed the final report directly with the family.

(Note the ‘will’ in 4(c).)

I do not know if the panel has shared the findings and the final report with the Morgan family – but not only is there nothing in the terms of reference to prevent the panel from doing this, the terms of reference expressly envisage this being done.

And there would be no greater check on any untoward redactions by the home office than the Morgan family having the original, unredacted report before them.

 

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