Where is the Tort? Something seems to be missing in the Investigatory Powers Bill

2nd March 2016

Here is an interesting omission from the Investigatory Powers Bill published yesterday.

The current legislation – the Regulation of Investigatory Powers Act 2000 – provides, at section 1(3), a tort for unlawful interference (emphasis added):

Any interception of a communication which is carried out at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable at the suit or instance of the sender or recipient, or intended recipient, of the communication if it is without lawful authority and is either—

(a) an interception of that communication in the course of its transmission by means of that private system; or

(b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system

This provision means a person can sue another person for unlawful interception, rather than just rely on the government to prosecute.  It was, in this way, a directly enforceable privacy right.  (It was a tort used, I understand, in phone and computer hacking claims.)

But the Bill does not (seem to) have this tortuous protection for individuals, even though Part 1 of the Bill is supposedly protecting privacy. (If it somewhere else in the vast Bill, I cannot find it.  Please correct me if I am wrong.)

If this is correct, and the tort is being repealed, then why is the government removing this civil law right, leaving the individual only with criminal law protection under what will be the new Act – which in turn needs the prior consent of the Director of Public Prosecutions?

I have just noticed the omission (it was also missing from the earlier draft Bill). There may be a good explanation. Let’s see.  I have asked the Home Office if they can tell us.

But there is no point adding “Privacy” to the title of Part 1 of the Bill if the government is also taking the directly enforceable tort from the statute book.

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“Privacy is Surveillance” – Part 1 of the Investigatory Powers Bill

2nd March 2016

Yesterday the government put the Investigatory Powers Bill before parliament.

(Note it is not a “draft” Bill – that was the last one. This is now the Bill (which is, in turn, a draft Act).)

The parliament webpage for the Bill is here and it is worth bookmarking, as website will track the passage of the Bill and will provide links to the debates and other materials.

The Bill itself is here  and the “explanatory notes” are here.  (The explanatory notes are to explain the Bill – but they are not part of the Bill, will not become law, and will not bind any court.)

It is a long and complex Bill – many of the clauses are highly technical even before you try and fit the clauses together. (In this way, writing legislation or any other complicated legal document is lot like coding.)

It looks like government is seeking to rush the Bill through at speed.  Of course, such disregard for parliament is contrary to this government’s lofty assertions about “parliamentary sovereignty”.  There is a serious question as whether parliament can properly scrutinise the Bill.

In this post, I do not even try to scrutinise the Bill.  I am going to do something far more trivial but which may (or may not) show something telling about the Bill.

You will see that “Part 1” of the Bill is called “General Privacy Provisions”.

PrivacyIsSurveillance

From a liberal perspective, this is an encouraging signal.

A search for “privacy” in the Bill, however, reveals that other than in clause 1(3)(a) – in the image above – there are no mentions of “privacy” anywhere else in the Bill, other than in titles.

Of the fourteen mentions of “privacy” overall:

one is the title of Part 1;

one is the title of Part 1 in the contents page;

nine are mentions of the title of Part 1 in the headers;

one is at clause 1(3)(a); and

two are in mentions of the Privacy and Electronic Communications (EC Directive) Regulations 2003 (S.I. 2003/2426).

So “privacy” is mentioned more often in the headers to pages than in the Bill itself, and it is only once used anywhere in the Bill when it is not in a title.

It is almost as if some bright spark at the Home Office thought that privacy concerns could be addressed by simply adding “privacy” to the title of Part 1 of the Bill.

Of course, this is not a complete way of assessing how privacy is addressed in the Bill – privacy points can be covered without necessarily using the word, and a search for “privacy” in the (non-binding) explanatory notes is an instructive exercise.

But, as far as Part 1 of the Bill is concerned, the motto could well be “Privacy is Surveillance” – as one famous political observer would have put it.

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The push-me-pull-yous of public policy: surveillance and freedom of information

1st March 2016

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“If you have nothing to hide then you have nothing to fear.”

Adage, attributable to someone or other.

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Surveillance and freedom of information are the push-me-pull-yous of public policy.

Those politicians and officials in favour of ever-more surveillance will assure you that if you have nothing to hide then you have nothing to fear.

But many politicians and officials – often the same ones urging greater powers of surveillance – want to weaken the freedom of information rights of the citizen against public bodies.  It would seem politicians and officials need the “safe spaces” which they also wish to deny the citizen.

Of course, this is a contradiction: the politicians and officials cannot – at least not intellectually – have it both ways.

At base the debates about surveillance and freedom of information are about the relationship of the citizen and the “state” – who knows what about whom.  And if politicians and officials want to know more about the citizens, then the same principle of transparency should first be applied to public activities.

After all, if politicians and officials have nothing to hide then they surely have nothing to fear.

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Law and policy round-up: Do Ministers know best?

10th February 2016

This is today’s law and policy round-up.

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Ministers really do know best, it would seem.

A couple of days ago the Attorney-General – whose office is still narked at losing the Evans and Prince of Wales letter case [2015] UKSC 21 – gave a speech where he explained why ministers were better guardians of the public interest than judges.

And yesterday at a parliamentary committee, Justice Minister Shailesh Vara responded defiantly to powerful recent criticism by the Master of the Rolls on the shoddy MoJ research into the effect of court fees.

But meanwhile, back in the real world, the Intelligence and Security Select Committee published a scathing report on how Ministers did not have any clue why they were asking for the surveillance powers in the new Investigatory Powers Bill.

It would appear Ministers do not know best, after all.

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FT post on Home Office, Saudi Arabia and the need for a ‘safe space’

13th January 2016

My latest FT post is now up, on the the Home Office using the jargon of “safe spaces” so as to avoid disclosing the nature of its relationship with the Saudi internal ministry.

FTHO story

SafeSpace

And this glorious comment:

CommentoftheDay

You can read the full post here.

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Two questions about “something must be done” following the Paris attacks

17th November 2015

In the aftermath of the Paris atrocities there are demands for action: dropping bombs and air-strikes, shoot-to-kill policies, more use of special interrogation techniques (ie, torture), less freedom of movement, more intrusion and less privacy, more powers for the security services, and so on.

What seems to be a feature of many of these demands is that there is no attempt to explain the supposed cause-and-effect. It is almost as if the merit of the proposals is self-evident, a sign of virility: something bad has happened, and so something must be done in return.

But each such demand raises two issues: one of practicality, and one of principle. That is: would the proposal actually help, and does the proposal conflict with the supposed principles, and way of life, we are presumably seeking to defend.

In terms of practice: just doing “something” does not mean you are doing the right thing.  It may make no difference, or it may make things worse.  In terms of dealing with terrorism, one false move can cause problems for a generation.  The history of dealing with the terrorist problems in Northern Ireland is packed with examples of things being “done” which just caused greater difficulties later on.

This is not to suggest doing nothing; just that what needs to be done needs to be thought-through.

So: will what is being called for actually work and, if so, how?

In terms of principle: there appears to be a genuine risk that we could end up undermining – even subverting – the very principles of personal autonomy, the rule of law and freedom of expression which the West can and should be defending and asserting.

These liberal principles are not absolute, and they can be interfered with for reasons of the greater good; but they should not be discarded casually either. The point is whether any serious thought is being put into the required balancing exercise.

So: how will what is being called for interfere with the fundamental values of civilization we are seeking to protect and, if so, has the right balance really been struck?

It sometimes seems that some of those wanting to drop bombs and order air-strikes, to deploy shoot-to-kill policies and to use more torture, to limit freedom of movement, and to intrude more and to give more powers for the security services, do not need a reason for their demands, and still less do they require any evidence as to the efficacy of what they propose; they just want a pretext.

Asking about whether a proposed action is really practical, and about whether a proposed action needlessly interferes with civilized values, is not a check to things being “done”.  It is not an excuse for doing nothing.

Answering such questions instead will tend to mean that the right things are done:  things that work, and things which mean liberal values are being taken seriously.

In essence: “something can be done” is always better than “something must be done”.

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The new Investigatory Powers Bill and the politics of ‘nodding along’

2nd November 2015

Today I have done a quick post at the FT on the Home Office’s PR exercise this week on the new Investigatory Powers Bill.

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The thinly veiled threats of the Saudi Ambassador

27th October 2015

When a genuinely extraordinary political decision is taken the consequences can often be telling.

Such decisions are not those usual ones that are predetermined or stage-managed, as are the stuff of any political system under the public gaze.  They are instead the decisions that suddenly disturb and disrupt the settled practices of those with power; they are decisions the effects of which are often worth watching carefully.

Earlier this month, the UK prime minister David Cameron ordered that the Ministry of Justice should pull out of a bid to provide training services to the prisons of Saudi Arabia.

The exact basis of that decision is not yet clear.

But it was not one which the Saudis and their allies in the UK Foreign and Commonwealth Office (FCO) were expecting the UK government to make; indeed, the FCO had until then managed to oblige the MoJ to continue with the bid even though the Justice Secretary, Michael Gove, was against it.

The Saudis are not happy with this decision, or about its significance.

The contract proposal itself was not big in the global scheme of things — just under £6m; it was more that the usual tactic of Saudis threatening to not “co-operate” unless they got their way did not work for once. It seemed as if a bluff was being called. The FCO had not wanted to upset the Saudis, but this supposed “wider” interest of the government was trumped by the prime minister effecting a quick fix to a cabinet split that was about to be exploited by the media and the opposition.

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The Saudis have now reacted publicly.

In Monday’s Daily Telegraph is a remarkable article from the Saudi ambassador in London, Mohammed bin Nawaf bin Abdulaziz. The ambassador’s piece is worrying — and revealing.

The article warns of the adverse consequences of the UK treating the Saudis with disrespect.

But it does so in a clumsy and discreditably strident manner.

The ambassador’s overall tone is evocative of some international protection racketeer telling the UK what a nice little country we have here, and wouldn’t it be a shame if “co-operation” ended.

One wonders if anyone at the Saudi embassy in London had the wit or sense to tell the ambassador to desist from publishing such a blatant exercise in implicit intimidation. Perhaps somebody did, and the first draft was even worse. Who knows. What is clear, however, is that Saudis do not react well to being told that they are not going to get their way.

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The ambassador’s article bears close attention, both for what it says and what it does not say.

For example, there are general threats with only the thinnest of veils:

“…an alarming change…potentially serious repercussions that could damage the mutually beneficial strategic partnership…a strong alliance [which up] until a few weeks ago, I would have said it had never been stronger”.

Then the threats become more specific. First, in respect of commercial matters:

“The Kingdom’s contribution to Britain’s security and economy provides the foundations on which the bilateral relations between our two countries are built, allowing trade, cultural exchanges and military cooperation to flourish. Saudi Arabia ultimately provides over 50,000 British families in the UK and the Kingdom with livelihoods, thanks to commercial contracts worth tens of billions of pounds. Saudis also have an estimated £90 billion in private business investments in the UK.

[…]
If the extensive trade links between the two countries are going to be subordinate to certain political ideologies, then this vital commercial exchange is going to be at risk.”

(On this point, also see the FT’s news report yesterday of the threat to the Typhoon contract.)

And then in terms of British lives and limbs:

“…the Kingdom remains an invaluable source of intelligence on the activities of terrorist groups. Information from Saudi intelligence in 2010 resulted in a major counter-terrorism success by scuttling an al-Qaeda attempt to blow up a cargo airliner over Britain. In a recent interview, David Cameron confirmed the importance of our contribution when he declared: “Since I have been Prime Minister a piece of information that we have been given by (Saudi Arabia) has saved potentially hundreds of lives here in Britain.” Given information to which I am privy, that number is, in fact, in the thousands.”

The message is plain: the UK had better be careful.

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Here it is important to remember what the prime minister’s decision was about.

It was a decision that a relatively small UK government department should not bid for overseas work but should instead concentrate on domestic matters.

It is the sort of issue that any sovereign government should be able to make in respect of its own public services.

But the ambassador has such a distorted a view of national sovereignty that he misses the irony of him complaining that the UK does not respect Saudi Arabia as a sovereign state while saying that it was not open to the MoJ to drop a bid so that it concentrate on domestic activities in England and Wales.

The ambassador’s express criticism of the political approach of the UK’s new leader of the opposition also looks at odds with the insistence that the UK should not interfere with the internal affairs of another country.

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The ambassador’s article is telling in other ways.

The propensity of the Saudis to use barbaric physical punishments is blithely passed off as a local tradition and custom, as if tying someone to a pole and flogging them nearly to death is somehow comparable to having a pole on a village green for dancing around on May mornings.

The ambassador also appears not even to be properly informed as to the matter in hand. He states that the UK prison cancelled a consultancy contract with Saudi Arabia worth £5.9m. In fact, the contract was not yet in place. It had not been signed because the Saudis had not yet awarded the contract to the UK – even though the final bid had been in April and the Saudis had still not made their decision by October (the intention was that the contract was to have been awarded by July).

What was cancelled was not a contract, but a contract bid. But such details do not matter to the ambassador, even though he is mounting threats on the back of what he says has happened.

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Ever since the Saudis pressed the UK in 2006 to drop the fraud investigation of BAe (read the first 22 paragraphs of the House of Lords’ 2008 Corner House decision for a chilling account of this dreadful incident) it has been obvious to anyone who wants to see what the influence of the Saudis is over the UK state by holding the twin swords of commerce and intelligence close to our necks.

So used are the Saudis in routinely threatening that “co-operation” will be at risk that various UK bodies not directly connected with foreign affairs – the Home Office, the MoJ, the College of Policing, and even the Information Commissioner (as I set out in a post earlier this month) – are all too scared even to reveal minor details of the relationships, lest the Saudis retaliate.

Against this backdrop, the decision of the Prime Minister earlier this month has caused a jolt in UK-Saudi relations. It may well be that something substantial has changed; or it may be that the old practices will resume.

But what is new is that Saudi diplomats have now taken to the pages of the British press to display their displeasure, and to make explicit in the media what they want the UK to believe is at stake. To do this, however, does not indicate Saudi strength but insecurity; it means what was said behind closed doors is no longer sufficient.

The blustering and bullying is now in the public square, and this cannot be undone; everyone can see the Saudis for what they are.

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Michael Gove “picks a fight” over the MoJ’s Saudi contract bid: the background

13th October 2015

The overnight news was dramatic: the Lord Chancellor and Justice Secretary, Michael Gove, has “picked a fight” in Cabinet.

And the subject of this political spat?

It would appear that it is the commercial bid by the Ministry of Justice (MoJ) to assist the prison service of Saudi Arabia, something I have been blogging about here and at the FT since January.

This post sets out the general background to this political development: in essence, everything you need to know.

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The overnight news

The story broke in the Times, with a page one news feature and a (very) well-informed opinion piece inside.

The front page of the print edition (hat-tip Nick Sutton):

20510 Times3

And here is what the online story looks like:

201510 Times2

And the opinion piece:

201510 Times1

(Please now click and read the originals if you can, even it involves paying: journalism costs money, whatever its source.)

The key facts in the Times story are as follows:

– there is a “cabinet row” between Gove and Philip Hammond, the Foreign Secretary;

– Gove has demanded the MoJ commercial bid be scrapped;

– Gove has circulated a memorandum to this effect;

– the dispute was raised at a meeting of the “National Security Council”

– the Prime Minister has had to determine the dispute, and has insisted that the commercial bid go ahead;

– Sajid Javid, the Business Secretary, supports Gove;

– Hammond warned that cancelling the deal would make the UK look an untrustworthy ally;

– and so, in summary, the Foreign Office and the Prime Minister have overruled the MoJ.

The Opinion piece repeats these facts, and adds the following detail:

“There was a robust exchange of views,” says a Whitehall source who has seen the letters. “The MoJ had human rights concerns; the Foreign Office felt this would have far bigger ramifications.” Downing Street ruled that the Ministry of Justice must honour its bid. Unless something changes, Mr Gove will sign the contract any day now and British civil servants will spend six months working with one of the most barbaric prison systems in the world.”

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The “commercial bid” of the MoJ

So what is this about?

[Most of the information below is contained in and sourced in these previous posts: FT, January 2015Jack of Kent, February 2015,  FT, September 2015Jack of Kent, October 2015, and FT, October 2015 (yesterday).]

The “commercial bid” of the MoJ to assist with the Saudi prison service was one of a number of transactions proposed by a group of MoJ civil servants who called themselves “Just Solutions international” (or “JSi” complete with gimmicky lower-case “i”).

JSi was established in 2012, when Kenneth Clarke was Lord Chancellor and Justice Secretary, but it developed rapidly under his successor (and Gove’s predecessor) Chris Grayling.

The idea was that JSi would sell “expert” services to foreign governments in return for cash on a “commercial” (as opposed to a costs) basis.  The MoJ would thereby make money from the transactions.

Involved in the creation and promotion of JSi was PricewaterhouseCoopers.

The proposed Saudi contract was first mentioned (in passing) in a MoJ report to Parliament in December 2014.  That in turn was brought to the attention of David Hencke, who broke the story in January 2015.

The MoJ under Grayling continued with the bid (despite the public criticism), putting a final bid in around April 2015.

In May 2015, after the general election, Gove replaced Grayling.  Gove then quickly reverses a number of Grayling’s policies: see Joshua Rozenberg here.

In September 2015, the MoJ announced it is closing down JSi, but also that the Saudi commercial bid was too advanced to be stopped.

After a bit of digging, I was able to establish that one reason then given by the MoJ for not dropping the bid – “financial penalties” – was invalid (and this led to an amendment of the September announcement to parliament).  The MoJ then confirmed it had to continue with the bid because of the “wider interests” of the government.  Alan White at Buzzfeed reveals that MoJ (and Gove) wanted to drop the bid but could not.

At this stage, therefore, there was obvious tension between government departments. Tension is not new, of course.

But what then electrified the situation is that at the end of September 2015, the new Leader of the Opposition Jeremy Corbyn mentions the bid in his conference speech.

Corbyn demanded of the Prime Minister:

“And while you’re about it, terminate that bid made by our Ministry of Justice’s to provide services for Saudi Arabia – which would be required to carry out the sentence that would be put down on Mohammed Ali al-Nimr.”

And that in turn is the immediate background to the overnight news.

So: an issue of “reverse public procurement” (ie, public bodies seeking to sell goods and services) in a relatively small government department (in spending terms) leads to a political fight between the holders of two great offices of state – the Lord Chancellor and the Foreign Secretary – which the Prime Minister then has had to resolve in the face of criticism from the Leader of the Opposition.

And then someone tells the Times about this happening.

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Assessing the overnight news

Things do not end up on the front page of the Times by accident.

There are reasons why this story has hit mainstream media in this well-informed way, and in the manner it has.

The details of the contract bid, or the MoJ’s recent opposition to continuing with it, are not news.  It has previously been covered in detail by David Hencke, by me here and at the FT, and by Alan White at Buzzfeed.  It was not of particular interest to political correspondents and columnists.

What has converted it to front page news is that the bid and the MoJ’s opposition has become the stuff of a cabinet split.  One can guess who would benefit from such a story.

What appears to be the situation (and here I am only going on what is in the public domain) is that the issue is of natural interest to Gove (I do not doubt his sincerity in not liking this Saudi bid) but that it also is a useful political tool for him to use.

Gove did not have to close down JSi – the fact he did shows his general disdain for selling MoJ services to foreign despots, even though it shut off a potentially lucrative revenue stream to a cash-starved department.

It is also clear that the Saudi bid would have been stopped but for pressure from the Foreign Office.

And so it also serves Gove as a political weapon: it is reminiscent of how Gove used the faith school issue in Birmingham when he was Education Secretary.

Whatever the political realities of the matter, one thing is plain: the MoJ should never have got itself into the misconceived and illiberal position of making commercial bids to sell UK state services to repressive regimes.

Nothing good was to come of it.

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The story of the unfortunate MoJ and Saudi commercial proposal

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.

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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.

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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.

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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.

So what?

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.

As I set out back in February, JSi is referred to (though not named) in the UKTI Security Exports Strategy of 2014 (host web page), which contains the following paragraph:

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.

*

Conclusions

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:

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