25th September 2015
This is the background story to my ongoing posts at the FT about the unfortunate contract proposal from the UK government to the government of Saudi Arabia, and what the deal tells us about who really has power in – and over – the UK polity.
It is an unfinished story at the moment, as it is not yet known if the transaction will actually take place; no final decision on the contract has been made.
But what is known and in the public domain already is bad enough.
For example, the relevant UK government department over the last couple of weeks has had to admit to misinforming both the House of Commons and the High Court about the relevant procurement exercise, and it would seem no official – or minister – at the department has an overall grasp of what is going on.
And now it seems now the government department itself is not in control of its own contract proposal, as it appears that the only reason for the bid continuing is political pressure from other government departments.
It is a remarkable – and revealing – situation.
The MoJ commercial proposal
The government department involved is, of course, the Ministry of Justice (MoJ).
The contract proposal is for the MoJ to provide training services to the prison service of Saudi Arabia.
The value of the contract is reported to be £5.9 million.
The contract is to be let on a “commercial basis” – that is, the intention is for the MoJ to make a profit, rather than to just cover its costs.
The services to be provided seem to be the time and supposed expertise of MoJ civil servants (all of whom are, of course, funded by the UK taxpayer).
In effect, the MoJ wants to make money out of selling UK state resources to the Saudis.
Why the MoJ commercial proposal is wrong
Stepping back, it is obvious that this proposal is odd and wrong in a number of ways.
First, is a strange reversal to the usual approach to public sector contracting, which is that the state is the purchaser from a supplier; here, it is the government itself purporting to be a supplier to a customer.
Second, it should not be the business of the civil service to be selling “commercial” services to non-UK purchasers; the job of the civil service is to administer public services as, well, public servants.
Third, it certainly should not be the role of the MoJ, of all UK departments, to seek to have any commercial relationship with the government of Saudi Arabia.
And this is because of a matter of basic principle.
The MoJ is responsible for the integrity of the court system of England and Wales; indeed, the ministerial head of the department – the grandly titled Lord Chancellor and Secretary of State for Justice – has a constitutional duty recognised by statute to uphold the “rule of law”.
The Saudi Arabian state, on the other hand, has repeatedly sought to undermine the UK legal system.
The ongoing attempts by the Saudis to disrupt the legal system are well documented.
The most notable example, though not the only one, was the subject of the notorious Corner House case, which set out how the Saudis had bullied the UK government into dropping a fraud prosecution of BAe.
Anyone interested in seeing the extent of Saudi influence over the UK government and how it seeks to frustrate due process should read the first 22 descriptive paragraphs of the 2008 decision of House of Lords.
Following Corner House, it should be simply unthinkable for the Saudis to be given any commercial sway over the MoJ, or any other part of the domestic legal system – and although £5.9 million is not a lot of money for the Saudis, it is a significant amount for a MoJ under pressure to reduce spending.
And fourth, it is a revolting notion that the UK should be assisting any part of the Saudi punishment system to be more efficient.
The Saudi regime is, without any exaggeration, barbaric. Criminal offences are not defined; there is no recognisable due process for defendants; and the punishments are savage. And this description is not just some hyperbole of a breathless human rights lawyer: it is what the UK embassy in Riyadh itself says in its chilling Information Pack for British Prisoners in Saudi Arabia. On punishments, the guide says:
Criminal law punishments in Saudi Arabia include public beheading, stoning, amputation and lashings. Serious criminal offences include not only internationally recognized crimes such as murder, rape, theft and robbery, but also apostasy, adultery, witchcraft and sorcery. In addition to the regular police force, Saudi Arabia has a secret police, the Mabahith, and “religious” police, the Mutawa. The Saudi courts impose a number of severe physical punishments. The death penalty can be imposed for a wide range of offences including murder, rape, armed robbery, repeated drug use, apostasy, adultery, witchcraft and sorcery and can be carried out by beheading with a sword, stoning or firing squad, followed by crucifixion.
What one is told by our embassy about what happens in the courtroom is not encouraging:
There is no jury system in Saudi Arabia. Trials are heard by a judge. They rely largely, and at times solely, on police reports and there is no guarantee that your pleas will be discussed. If a decision is taken by the Ministry of Interior or the Public Prosecutor’s office to send an individual before a Sharia court the procedures are very different from those in the UK. The court consists of a judge, the court clerk and a prosecutor from the Public Prosecutor’s office. The Judge will read the file prepared by the Police, the Public Prosecutor’s office and a statement made by the defendant. He will then ask a few questions from those involved and reach a decision. You will be allowed to have a lawyer represent you in court but he will not be allowed to cross examine witnesses or argue about statements presented by the either the police or the Public Prosecutor.
But you do not have to go to a UK embassy pamphlet to get a sense of the barbarity of the Saudi punishment; you just have to look at news media.
Cases of dire inhumanity by the Saudi state are a commonplace.
This week, for example, the Saudis are seeking to behead a seventeen year-old; and if executing a minor was not sickening enough, the plan by the Saudi authorities is to then have the boy’s corpse crucified.
This is not a punishment regime any western liberal democracy should be seeking to make more efficient.
The problem within MoJ
So how did the MoJ get into this unfortunate position?
The answer is depressing; the MoJ’s civil servants appear to have blundered into bidding for the Saudi prisons contract and nobody at the department had the wit or sense to stop them before it got too far.
This was not knavery; it was more collective foolishness within a dysfunctional government department.
And it was not only the Saudis to whom MoJ civil servants were seeking to sell services on a commercial basis; there were to be contracts with despots around the world.
No regime in the world seems to be too nasty. As I have described previously, the self-appointed unit which undertook this activity – “Just Solutions international” (JSi) – was “an exercise in amateurism and obfuscation, with civil servants toying with high-value international service contracts”.
One of many commendable things which the new Lord Chancellor and Justice Secretary Michael Gove has done since taking over the MoJ in May is to order that JSi will cease to operate.
(This decision by Gove is one of a number of reversals of what happened previously at the MoJ which are discussed by Joshua Rozenberg in a recent insightful article.)
Gove quite properly insists that the focus of the work of MoJ civil servants should the courts, prisons, and probation services they are actually responsible for.
The global gallivanting has come to an end.
But bringing the antics of the JSi to a full conclusion has proved hard to do in practice. My last FT post on the MoJ and JSi was published on 11 September 2015, just after there had been a parliamentary statement saying that although JSi was to be closed down, the Saudi contract bid had to continue.
The natural and ordinary meaning of the explanation then given for the continuation by the MoJ was that Saudi “financial penalties” meant that the bid could not be withdrawn.
As my last FT post noted, this did not seem right. And, when officials at the MoJ double-checked, it turned out not to be right.
If the “financial penalties” could have applied at all (and that is still not clear), they were out-of-date. In an elementary error, the civil servants briefing the minister who made the parliamentary statement had got basic information wrong.
And so parliament was misinformed (or, in truth, misled) and the MoJ had to formally correct the ministerial statement. And such corrections are not done lightly by government departments.
The MoJ even went further than a formal correction; in an accompanying letter to the MP (who had nominally asked the question to which the ministerial statement was in the form of an answer), the MoJ made plain it was its own officials who were to blame for the misinformation:
I am writing to inform you of a correction to my answer to your parliamentary question on Just Solutions international (JSi).
My answer stated: “Following the submission of a final bid in April 2015, [the National Offender Management Service] is now liable for financial penalties should the bid be withdrawn.”
This sentence was incorrect. In fact NOMS is only liable for financial penalties in the event of a withdrawal for a “validity period” of four months after the submission of the final bid in April. This period ended on 21 August meaning NOMS is no longer subject to financial penalties. I have asked officials for a full explanation as to why incorrect information was provided first to ministers and then to parliament through a written answer. It is clearly unacceptable for incorrect information to be given to parliament and I apologise unreservedly for this error. The parliamentary records will be corrected and I will be placing a copy of this letter in the House [of Commons] library.
What does this error matter?
It is significant in two ways.
First, it showed that even ministers and their private offices at the MoJ were not being given reliable information by officials in respect of potentially crucial information which could have influenced decision making on a controversial and high value contract with a barbaric regime.
But second, it meant that the fig-leaf of the “financial penalties” excuse for continuing with the bid fell away, and exposed something more worrying: the MoJ is now being forced into carrying on with the contract proposal, regardless of Gove’s desire to cease such activities at his department.
It is no longer a decision just for the MoJ (even though back in January, the MoJ press office assured journalists that “if the Saudi Government decided to offer NOMS the contract…the Secretary of State would have the opportunity to review the earlier decision in the light of current issues and considerations. The final decision may be to continue to contract (should it be offered) or to withdraw from the process)”.
The hands of the Lord Chancellor and Justice Secretary have been tied by government colleagues.
And it was not only ministers and the House of Commons which have been misled by officials.
A few days after the MoJ admitted to misinforming parliament, another interesting and potentially significant error was revealed.
The ministerial statement had stated that the final bid to the Saudis had been made in April.
But this contradicted what the MoJ’s lawyers had told the High Court in defending the spirited judicial review of JSi brought by the Gulf Center for Human Rights. Government lawyers incorrectly told the court that the final bid was made in February.
Again, a mix-up of dates may seem unimportant. But in the context of litigation, such dates can be crucial, especially in cases relating to commercial and procurement matters.
In essence, the more stale the procurement stage, the less likely a court will be minded to grant a remedy.
And, in any case, the High Court should not be given false information. So, as with the House of Commons, the MoJ has had to formally write to the High Court to correct a mistake and apologise in respect of information which the MoJ should not have got wrong.
The Gulf Center for Human Rights has said that the judicial review is continuing – and this week the experienced judicial review judge Mr Justice Supperstone granted the Gulf Center for Human Rights a protective costs order, saying that he was satisfied that that claim raised a matter of public importance which the public interest requires to be resolved.
Misinforming both the House of Commons and the High Court are serious matters, and that it has happened is indicative of the ineptness of the MoJ in respect of a major contract bid.
But what is far more serious is that the MoJ is being obliged to continue with the proposal.
The “wider interests” of government, and the interests of Saudi Arabia
In the same ministerial letter to the MP that corrected the point about “financial penalties”, the MoJ goes on to say:
I should stress that this does not affect the decisions either to choose JSi or to proceed with the training needs analysis bid. As my original answer stated, the bid will proceed because the Government decided withdrawing from the Saudi bid at this late stage would be detrimental to the HMG’s wider interests. Although ministers considered the implications of potential financial penalties during their decision-making process, the critical factor was the strong view from across government that withdrawing at such an advanced stage would harm HMG’s broader engagement with the Kingdon of Saudi Arabia.
The passage is subtle; but the only sensible meaning of the passage is that the MoJ is being pressed into continuing by other government departments. Over at Buzzfeed, the estimable Alan White reports:
Seven days ago, Grayling’s successor, Michael Gove – said by insiders to strongly oppose the notion that Britain should enter into such commercial contracts with despotic regimes – announced that JSI would be wound up.
However, a £5.9 million contract to advise Saudi Arabian prison system on training needs will still be delivered.
BuzzFeed News understands that Gove wanted to terminate the entire contract but this was blocked by other government departments who feared that it would damage relations with the Saudis.
White is nobody’s fool as a journalist, and his description of Gove’s sentiments is likely to be well-sourced and correct.
It would accord with the robust wording of the ministerial statement and the letter to the MP.
And it is also consistent with Gove closing down JSi.
So it is probably not just MoJ spin that Gove and his department want distance from the contract: the evidence is that the department is clearly being made to do something it no longer wants to do.
But who are these “wider” government interests?
Nobody in government is willing to say at the moment, but a look back at the history of JSi is suggestive.
Ministry of Justice (MOJ) and National Offender Management Service (NOMS) Supports capacity for design and prison build across overseas prison services. Provides justice assistance consultancy services alongside learning and development opportunities and interventions via the Prison Service training college… NOMS will work with UKTI to identify trade opportunities arising from this work.
And back in 9 October 2013, Gove’s hopeless predecessor Chris Grayling referred to JSi in a speech to the World Probation Congress, where he said:
We are committed to supporting those countries in the development of their criminal justice systems, working in liaison with UK Trade and Investments, the Department for International Developments and the Foreign and Commonwealth Office.
It is not really that difficult to see that the “wider” government interests forcing the MoJ to continue with this misconceived and illiberal proposal are UK Trade and Investments, the Department for International Developments, and the Foreign and Commonwealth Office.
And in turn, it is not difficult to see why the FCO in particular would not want the MoJ to be so discourteous as to withdraw from a Saudi procurement exercise. The Saudis are, after all, key strategic allies of the UK. This is not the least thing the UK does to appease a regime with one of the most dreadful human rights records in the world.
The proposed MoJ deal is now an ugly mess.
The proposal is wrong in principle; and it is now unwanted by the MoJ.
The proposal offers the Saudis a commercial grip over the very department responsible for the same legal system which the Saudis have repeatedly sought to undermine (as set out, for example, in Corner House).
It also means the prospect of UK civil servants using UK taxpayer funded resources to help make more efficient one of the most vile and brutal punishment regimes in the world.
It is a distraction from what the MoJ should be doing.
It is therefore as wrong a transaction as one can imagine; there is nothing good to be said for it.
But yet, such is the importance of keeping the UK’s ally Saudi Arabia happily on side that somehow there is a power greater than anything which can be said against it.
Parliament and ministers and the courts may all be misled but the deal must continue, lest the Saudis be upset with the UK.
For the UK government as a whole, it would seem that the integrity of the domestic justice system and international human rights priorities are but loads on one side of the set of international policy scales, and they are outweighed by the interests of Saudi Arabia on the other side.
In essence, the UK government’s “wider” interests appear to be nothing other than the interests of Saudi Arabia.
ADD, 26th September 2015
This post prompted some positive responses on Twitter:
Must-read piece by David Allen Green discloses that parliament and the high court were misinformed by MoJ officials. https://t.co/W1LWL3jX6I
— Joshua Rozenberg (@JoshuaRozenberg) September 25, 2015
— Matthew Scott (@Barristerblog) September 25, 2015
— Jenny McCartney (@mccartney_jenny) September 25, 2015
— Alan White (@aljwhite) September 25, 2015
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