8th October 2016
The Brexit news was dramatic. The government was reported to be barring foreign academics from providing policy advice on Brexit.
What had happened?
Was this correct?
In short: the government has not barred foreign academics from providing policy advice, at least not in any legal or other formal way.
To do so would be almost certainly unlawful: for example, the government would be in breach of the law of public procurement if it discriminated in favour of UK citizens instead of EU citizens when commissioning research services.
And there is no such bar set out in any published government document; it seems not to be in any contract specification or tendering document; and there does not even seem to be any written communication from the FCO stating the bar.
But senior managers at the London School of Economics (LSE) believed they had been told by the Foreign and Commonwealth Office (FCO) that there was now such a bar.
How did LSE senior managers come to believe the FCO had said there was such a bar?
The answer to this question is not (yet) clear.
The story begins with a tweet.
The tweet was credible and serious. A quick Google would show that the tweeter was a highly regarded academic at the LSE.
And the tweet was true: that was exactly what the tweeter had been told.
The Times has today published extracts from an LSE internal email (emphasis added):
However, in an email seen by The Times the head of the European Institute at the LSE revealed that the Foreign Office was only prepared to work with academics who had a UK passport. “The FCO research department will have a commissioning fund to contract external work,” Kevin Featherstone wrote in an email to colleagues. “They envisage approaching academics (including other universities) to contract staff on a daily rate and to invite others to be part of an expert advisory panel.”
He then added: “A sign of the post-Brexit climate: those to be contracted must be UK passport-holders.” Mr Featherstone admitted that the new policy would “exclude some of our best, most relevant experts”.
I understand the email commences with a reference to this information being from “a follow-up call today with the FCO concerning our recent submission of briefing papers”.
There is no reason to doubt that the author of the LSE internal email believed the content was true.
The detail of the email is important.
First, the origin of the information was a telephone conversation, not any written communication, still less a formal contract specification or tendering document.
(Some news sources say it was said in a meeting. In any case it was an oral communication)
And second, the information was in respect of something which was still at preliminary stage: “will have a commissioning fund…[t]they envisage”. This indicates it was not (yet) a formal requirement for an actual tender or contract for research services.
The information appears to have come from a conversation with a FCO policy official.
According to the FT today, the policy official was the FCO’s head of research, and not a procurement official or anyone directly connected with setting out the terms of a proposed tendering exercise.
This is important, because any central government procurement official would have immediately realised that such a stipulation would be contrary to public procurement law. Whilst the FCO is entitled to insist on security clearance in respect of certain contracts, non-UK nationals can (and do) receive such clearance.
For completeness, reference should also be made to the public LSE statement yesterday:
You may have seen reports in the media that the Foreign Office have advised us that they will be issuing tenders to contract for advisory work, but that only UK nationals will be eligible to apply.
Whilst the Foreign Office has long had a rule restricting the nationality of employees or secondees, the extension of the bar to advisory work seems to be new. However, it is for the Foreign Office to determine what its national security arrangements are, and their legality, not for us.
We have issued a public statement (please see below) stating that all our academics produce excellent work whatever their nationality, and could provide a valuable source of advice. We are standing firm to our principles of academic independence, and valuing our truly international community of scholars. We will continue to stand by our colleagues and we strongly value the work you all do.
This refers to “advised”, which is consistent with it being from a telephone call and not a written instruction. I was also told by the LSE press office yesterday that it was a telephone call.
There is no doubt that senior LSE managers believed that this is what they had been told by a senior FCO policy official.
But what was the FCO’s side of the story?
The FCO press office was slow in dealing with this matter yesterday, and news outlets published the news of the LSE bar without FCO comment. This is understandable because the LSE internal email was sufficient to base a news report on.
A statement was eventually provided yesterday:
A Foreign Office spokesman said:
“The FCO regularly works with academic institutions to assist in its policy research and nothing has changed as a result of the referendum. It has always been the case that anyone working in the FCO may require security clearance depending on the nature and duration of their work.
“Britain is an outward-looking nation and we will continue to take advice from the best and brightest minds, regardless of nationality.”
The reference to security clearance is correct: such a stipulation can be made.
But the interesting point is in the final paragraph. The FCO is stating that there is no bar on advice on the basis of nationality.
And the FCO is stating this “continues” to be the case, meaning it was in place at the time of the communication with the LSE.
I asked the FCO press office yesterday on the record whether this meant the story there was a bar was untrue. The story was “untrue” the press officer told me.
This was also said by the FCO to Paul Brand, the ITV journalist:
So the FCO denies that there was ever such a bar.
What the FCO statements do not tell us is whether it is denied that the FCO policy official mentioned such a possible bar in the telephone call.
On this, Paul Brand’s further tweet shows the LSE stands by its understanding of what was said by the FCO:
What happened in the communication between the FCO and LSE is not clear.
What is clear is that the senior managers at the LSE believed that they had been told of a new bar. There is no other sensible explanation for the internal email.
But what is also clear is that the FCO does not (at least formally) have such a new policy, and that it was not set out in any contract specification or tendering documents.
(I also think it is virtually certain that such a stipulation would not be legally open to the FCO in any case.)
The LSE should, of course, have insisted on the new policy being set out in writing by the FCO before distributing it internally.
Was the FCO seeking to do a “nod and wink” – doing by an oral communication what it dare not put in writing? If so, that would be stupid, as such a general policy would inevitably have to be reduced to writing by LSE (as indeed it was straight away) and communicated internally to its staff. The FCO would gain nothing by any exercise in “plausible deniability” in this way.
If there was no new policy, then there has been a mistake or misunderstanding by somebody.
So in summary (as far as we can know): either the FCO policy official mistook or misunderstood what the FCO could stipulate, or the LSE mistook or misunderstood what the FCO had told it.
ADD (9th October 2016): Professor Steve Peers has provided an alternative view which should be read to complement this post
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