Estragon’s boot: the Conservatives delay the repeal of the Human Rights Act

27th February 2016

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Estragon, sitting on a low mound, is trying to repeal the Human Rights Act.

He pulls at it with both hands.

He gives up, rests, tries again.

*

According to a news report today, the Conservative government has “shelved” the proposals to repeal the Human Rights Act and replace it with a “British Bill of Rights”.

This is not a surprise. It was never going to be an easy task.

In the last week or so, the proposals – as well as a daft and dappy “Sovereignty Bill” proposal – have been nothing other than tokens in a political game between the Prime Minister and other Conservative politicians about supporting and opposing Brexit.  But the tokens turned out to have no value and no purchase in this game.

Last May this blog set out the “seven hurdles” for repeal of the Human Rights Act.  These hurdles included the facts that the Good Friday Agreement requires the European Convention on Human Rights to have local effect in Northern Ireland and that Scotland would have a veto on the replacement legislation.

These were real hurdles, and they could not be wished away in a game of tokens.

The hurdles are still there.

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The Human Rights Act is not likely to be repealed this Parliament.

Even if the Conservatives could agree on the proposals, and somehow had solutions to the problems presented by Northern Ireland and Scotland, the parliamentary arithmetic is against them: it is an issue which divides the Conservatives and would unite the opposition parties in both houses.

The Act is not a perfect piece of legislation, even for supporters of human rights law.  It actually does not do a lot which could not be done by courts drawing on other, domestic case law; but it does enough.

And the Conservatives have begun to realise that it is not worth the time and the effort of repealing and replacing it.

*

Estragon with a supreme effort succeeds in pulling off his boot. He peers inside it, feels about inside it, turns it upside down, shakes it, looks on the ground to see if anything has fallen out, finds nothing, feels inside it again, staring sightlessly before him.

“Nothing.”

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With apologies to Samuel Beckett.

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The prisons policy of a mischievous demon

8th February 2015

Prisons policy is in the news today.  This is from my 2013 post at FT on custodial sentences:

Here is a thought-experiment: imagine that you have asked some mischievous demon to conceive the most counter-productive way of dealing with crime.

What fiendish scheme would this diabolic agent devise?

The demon could suggest a system:

– where offenders are kept together with more serious and experienced criminals for months or years, and so can learn from them;

– where the offender is taken away from any gainful employment and social support or family network;

– where the offender is put in places where drugs and brutality are rife;

– where the infliction of a penalty can make the offender more, and not less, likely to re-offend; and

– where all this is done at extraordinary expense for the taxpayer.

A system, in other words, very much like the prison system we now have in England and Wales.

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Falconer refers the MoJ’s criminal legal aid fiasco to the National Audit Office

1st February 2016

The shadow Lord Chancellor Charles Falconer has today referred the Ministry of Justice’s aborted criminal legal aid “reforms” to the National Audit Office for investigation.

Below is a copy of the letter which was sent today.

 

Dear Sir Amyas,

I write to ask the National Audit Office, as the body responsible for scrutinising public spending on behalf of Parliament, to investigate the decision by the Ministry of Justice to pursue its policy of consolidating the criminal legal aid services market through a model known as “dual-contracting”, as well as the Legal Aid Agency’s (“LAA”) handling of the procurement process for the introduction of Own Client and Duty Provider Crime Contracts.

The Government’s proposals for legal aid were first consulted on in June 2013 in the document Transforming Legal Aid: Delivering a more credible and efficient system[1].

As a result of fierce opposition to some of the Government’s plans, the Justice Secretary came before the House of Commons on 5 September 2013 and announced that there would be a further consultation, Transforming Legal Aid: Next Steps[2], in relation to two of the original proposals, those to introduce competitive tendering and proposed reforms to criminal advocacy fees.

On 27 February 2014, the Government unveiled its final package of criminal legal aid reforms, which included staged cuts of 17.5% and the introduction of a dual contracting model[3].

There has been considerable opposition to the Government’s proposals and the decision to commence a tender process for 527 Duty Provider Work contracts was the subject of judicial review proceedings.

In March 2015, the LAA set new deadlines for crime duty tender contracts following the Court of Appeal’s decision to dismiss the Law Society and practitioner groups’ challenge.

In June 2015, the Parliamentary Under-Secretary of State for Courts and Legal Aid, Shailesh Vara MP, published a Written Statement confirming that the government would press ahead with the second 8.75% reduction to litigators’ fees and with the new duty provider contracts[4].

Shortly afterwards, practitioner groups commenced a nationwide boycott of legal aid work under what they describe as ‘derisory’ new rates.  This was suspended after 52 days of protest as a gesture of goodwill following talks with the Lord Chancellor and MoJ officials.

Criminal legal aid firms found out whether they were successful in their bids for new contracts in October 2015.

The procurement process for the new duty provider contracts has been mired in chaos and controversy from its inception.

After repeated delays in announcing the tender results and reports of errors, two separate whistle-blowers – Freddie Hurlston and Paul Staples – came forward alleging that the process had been “shambolic and unprofessional”, with bids being handled by inexperienced, temporary staff and staff being put under pressure.[5]

Despite denials by Ministers, a response from Shailesh Vara MP to questions tabled by Karl Turner MP revealed that almost twenty per cent of the assessment team were temporary staff and that staff working on the bids were not required to have procurement experience.[6]

Following these allegations, the president of the Law Society, Jonathan Smithers, wrote to the Chairs of the Justice Select Committee and the Public Accounts Committee expressing concerns that the process had not been robust and calling for an independent review[7].

 A judicial review, sought by the Fair Crime Contracts Alliance, has been launched which was due to open on 7 April and a hearing into more than a hundred individual procurement law challenges was due to begin on 3 May.

On 13 November, the LAA was forced to announce that services under the new contracts, scheduled to start on 11 January, would now start on 1 April 2016[8].

Following speculation at the start of January 2016 that the court action would cease and that the Government would drop its plans, the Law Society asked the LAA to clarify its plans. The LAA maintained that there had been no change in policy[9].   

 On 28 January, the Secretary of State for Justice, the Rt Hon Michael Gove MP, announced via a Written Ministerial Statement that the Government had decided not to go ahead with the introduction of the dual contracting system and to suspend, for a period of 12 months from 1 April 2016, the second fee cut[10].

This is a significant change in policy and one that has taken place very late in the day. Not only will many criminal law firms will have already taken decisions either to expand or to cut staff based on their success in the bidding process but much time and expenditure is likely to have already been spent by the MoJ and the LAA. In addition, the Government has so far ignored calls – by the Law Society and the Labour party – for an independent review of the procurement process.

For the reasons set out above, I hope you will agree that the NAO has an important role to play in ensuring that the interests of the taxpayers have been properly safeguarded in this case.

I copy this letter to the Chair of the House of Commons Public Accounts Committee, Meg Hillier MP.

[1] See https://consult.justice.gov.uk/digital-communications/transforming-legal-aid

[2] See https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps

[3] https://www.gov.uk/government/news/transforming-legal-aid-government-response

[4] http://www.parliament.uk/documents/commons-vote-office/June%202015/10%20June/2.Justice-Legal%20Aid.pdf

[5] http://www.lawgazette.co.uk/law/whistleblower-claims-legal-aid-contracting-process-flawed/5051581.fullarticle; http://www.legalvoice.org.uk/2015/11/13/duty-tender-shambolic-and-unprofessional-says-second-laa-whistleblower/

[6] http://www.theyworkforyou.com/wrans/?id=2015-10-29.14001.h&s=speaker%3A24767+section%3Awrans#g14001.q0

[7] http://www.lawgazette.co.uk/practice/society-calls-for-independent-review-of-duty-contract-procurement/5052209.fullarticle

[8] https://www.gov.uk/government/news/crime-news-provision-of-criminal-legal-aid-services-from-11-january-2016

[9] http://www.solicitorsjournal.com/news/crime/funding-legal-aid/25215/law-society-seeks-clarity-legal-aid-contract-procurement-process

[10] https://www.gov.uk/government/speeches/changes-to-criminal-legal-aid-contracting

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Just Solutions International caused a £1.1 million loss to the Ministry of Justice

29th January 2016

It now can be revealed that “Just Solutions International” – the Ministry of Justice commercial venture promoted by former Lord Chancellor and Justice Secretary Chris Grayling – caused an overall £1.1 million LOSS to the MoJ.

JSI was closed by Grayling’s successor Michael Gove last October.

From a National Audit Report [Edit: Now Online]:

The total income generated by JSi was less than £1 million. The main contracts delivered by NOMS, under the JSi brand, between 2012 and 2015 were for training Royal Oman Police officers (£255,000), consultancy on prison design in Libya (£128,000) and contracts in Nigeria (£130,000), Australia (£89,000) and the Seychelles (£34,000).

The cost of setting up JSi exceeded the income generated by completed contracts. We estimate that JSi’s costs were approximately £2.1 million from 2012 until its closure, including £239,000 on consultancy services. Therefore JSi made a net loss of approximately £1.1 million in this period. This is due, in part, to the decision to withdraw from prospective arrangements with Saudi Arabia and Oman. 

The NAO has now provided this press release:

Investigation into Just Solutions International

The National Audit Office (NAO) has published the findings from its investigation into Just Solutions International (JSi), which was the commercial arm of the National Offender Management Service (NOMS). JSi aimed to help improve justice systems across the world by selling products and consultancy services. In September 2015 the Ministry of Justice announced the closure of JSi. Shortly after this announcement the NAO received correspondence raising concerns around the transparency of JSi’s activities and requesting that we investigate.
The key findings of this investigation are as follows:

· Just Solutions International (JSi) was created in 2012 to exploit commercial opportunities arising from National Offender Management Service (NOMS) activities relating to IT, training and consultancy services. The target market was primarily overseas governments originally facilitated through the Foreign & Commonwealth Office (FCO) then directly with overseas governments from 2014. JSi aimed to make a commercial return on work contracted from overseas governments.

· JSi was established as a brand within the NOMS Commercial Development Group (CDG) after the NOMS board rejected a proposal to establish JSi as a company. A number of consultants were engaged from 2010 to 2014 to undertake pilots and develop business cases that formed the basis of JSi.

· In establishing JSi, NOMS followed the current guidance from HM Treasury, the National Archives and the Cabinet Office where this guidance was available. The Cabinet Office guidance is limited because it does not cover the question of whether a company is the most appropriate form for new operations.

· The total income generated by JSi was less than £1 million. The main contracts delivered by NOMS, under the JSi brand, between 2012 and 2015 were for training Royal Oman Police officers (£255,000), consultancy on prison design in Libya (£128,000) and contracts in Nigeria (£130,000), Australia (£89,000) and the Seychelles (£34,000).

· The cost of setting up JSi exceeded the income generated by completed contracts. The NAO estimate that JSi’s costs were approximately £2.1 million from 2012 until its closure, including £239,000 on consultancy services. Therefore JSi made a net loss of approximately £1.1 million in this period. This is due, in part, to the decision to withdraw from prospective arrangements with Saudi Arabia and Oman. The NAO also note that had JSi not been created, NOMS would have committed funding to support wider international engagement with countries to support FCO and wider Government objectives.

· In September 2015 the Secretary of State for Justice closed JSi and decided not to pursue any commercial activities in Oman. In October 2015 JSi withdrew from the bid for work with Saudi Arabia. This followed the launch of a judicial review into JSi and significant media and political interest in the proposed work with Saudi Arabia. There were no financial penalties for withdrawing from contract negotiations with Saudi Arabia.

· JSi is now closed and NOMS does not plan to perform further work for overseas governments on a commercial basis. NOMS will continue to receive visits and requests for assistance from overseas governments through FCO and other UK departments for the achievement of cross-government objectives.

Notes for Editors

1. This report is a National Audit Office Investigation. The NAO conducts investigations to establish the underlying facts in circumstances where concerns have been raised with us, or in response to intelligence that we have gathered through our wider work.

2. Press notices and reports are available from the date of publication on the NAO website, which is at the NAO’s website. Hard copies can be obtained by using the relevant links on our website.

3. The National Audit Office scrutinises public spending for Parliament and is independent of government. The Comptroller and Auditor General (C&AG), Sir Amyas Morse KCB, is an Officer of the House of Commons and leads the NAO, which employs some 810 people. The C&AG certifies the accounts of all government departments and many other public sector bodies. He has statutory authority to examine and report to Parliament on whether departments and the bodies they fund have used their resources efficiently, effectively, and with economy. Our studies evaluate the value for money of public spending, nationally and locally. Our recommendations and reports on good practice help government improve public services, and our work led to audited savings of £1.15 billion in 2014.

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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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The damning Commons justice committee report on the criminal courts charge

20th November 2015

One of the most illiberal and misconceived measures adopted by the Ministry of Justice – perhaps by any government department in recent years – was the criminal courts charge.

Today the Commons justice committee has published a short but critical report. You should read it – the web version is here and a PDF is here.

The MoJ cannot easily ignore this; and it may be that is the point.  It is very helpful for a Tory-majority select committee to give “cover” to the MoJ in reversing this measure.  Indeed, you can easily imagine the polite conversation:

“Hello Bob”

– “Hello Michael.”

“Thank you for taking my call, Bob. Very kind. How are you?”

– “In good form Michael, mustn’t grumble. How are you?”

“I am well, thank you ever so much for asking. So thoughtful of you.  But I do need a little help. Dreadful policy inherited from Chris. We need to shift it, but we do need some cover.”

[Pause.]

– “I know, perhaps a damning report?”

“What a great idea, Bob, oh yes please. I knew you would think of something.”

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I am certain no such conversation actually took place (and I am only being satirical).  The charge is so awful that being critical of it needs no external influence.

And if the MoJ does now proceed with the charge’s abolition (or fundamental change) then – following the MoJ’s delay last week of the botched criminal legal aid procurement – it would seem that almost every distinctive policy of Grayling at MoJ has now been reversed or improved.

 

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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 “Bill of Rights” and a blank sheet of paper.

4th October 2015

There appears to be further slippage in the Tory proposals for repealing the Human Rights Act.

Look at the following three quotes (with an emphasis added to each one):

“The scrapping of the human rights act, a pledge included in the Tory manifesto, is one of the measures to be included in the prime minister’s plans for the first 100 days, when the Queen’s speech is delivered on 27 May.”

Guardian, 10th May 2015

“We will bring forward proposals on a Bill of Rights this autumn.”

Dominic Raab, MoJ Minister, House of Commons, 8th September 2015

“Mr Gove is also grappling with how to fulfil the Conservative manifesto commitment to replace the Human Rights Act with a British Bill of Rights. The consultation will, he says, be out “in a few months’ time”.

Interview with Michael Gove, Lord Chancellor, The Times, 3rd October 2015

You will also see the Tories have gone from a Bill in the Queen’s Speech, to “proposals”, to a “consultation”.

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So what is happening?

Why is repeal of the Human Rights Act proving to be the Godot of repeals?

“Estragon, sitting on a low mound, is trying to repeal the Human Rights Act. He pulls at it with both hands, panting.   He gives up, exhausted, rests, tries again.”

 

It is not difficult to imagine.

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In a room, somewhere in Whitehall, there is a desk and on that desk is a piece of A4 paper, and a pencil.

The paper has as a title “British Bill of Rights”.  It is otherwise blank.

Every so often, a person comes in to sit at the desk.  The person may be a civil servant or a minister or a special adviser; indeed, they may take turns.  The person picks up the pencil and looks at the paper.

From time to time, the person goes to start writing a draft clause but hesitates, and sighs.  And the paper remains blank but for the title.

Once, when news came in from Scotland and Northern Ireland, as to their opposition to repeal of the Human Rights Act, there was a flash of inspiration: the word “British” was crossed out, leaving “Bill of Rights”.

But for that, the page still remains blank.

“Never mind,” thinks the latest person in that room, “this does not need to be done for another few months”. 

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The constitutional and political reality is that, for the reasons set out in an earlier post, the repeal of the Human Rights Act and its replacement with a “Bill of Rights” – British or otherwise – will be a virtual impossibility this parliament.

It also remains difficult to see how a new “Bill of Rights” will be any different from the current Act.

Repeal is an easy thing to promise, and to promise it will always get easy Tory cheers and easy approving copy in the tabloids; but it is hard in practice.

So unless the Tories get a move on, it looks like the Act (which celebrated its fifteenth birthday of coming into force this week) will still be there at the 2020 General Election, and no doubt a promise to repeal it will then be in the 2020 Tory Manifesto.

And, if the Tories win, then the process of coming up with a replacement will start, all over again.

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The MoJ-Saudi Memorandum of Understanding – a timeline

1st October 2015

This is a timeline of (most of the) information in the public domain about the UK Ministry of Justice’s “Memorandum of Understanding” with the Saudi Arabian government, signed on 11 September 2014.

 

12 November 2013

The House of Commons Foreign Affairs Committee publishes a detailed report on the UK’s relations with Saudi Arabia and Bahrain.  It includes the following conclusion:

“25.  The UK is well-placed to provide legal and judicial reform assistance and we recommend that the government make this constructive contribution a focus of its human rights work with Saudi Arabia. Despite the considerable challenges, promising steps appear to have been taken toward providing constructive assistance but these must be converted into solid and reportable programmes. The UK should also encourage the development of Saudi Arabia’s consultative systems, and we particularly welcome initiatives such as parliamentary exchanges in this regard.”

It also lists the MOUs and treaties between the UK and Saudi Arabia then in force.

 

February 2014

The Ministry of Justice (MoJ) is referred to in the UKTI Security Exports Strategy of 2014 (host web page):

“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… NOMS will work with UKTI to identify trade opportunities arising from this work.”

 

March 2014

According to a 2015 FCO report, the Home Office sign a Memorandum of Understanding with Saudi interior ministry:

In March, the Home Secretary, Theresa May, signed a MoU with her Saudi counterpart to help modernise the Ministry of the Interior, which draws on UK expertise in the wider security and policing arena. This will complement work going on between the College of Policing and a range of Saudi security bodies.

 

August 2014

According to the December 2014 mid-year report (see below), The MoJ’s JSi submit “a £5.9m proposal to the Kingdom of Saudi Arabia, Ministry of Finance to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service”.

 

10 September 2014

Chris Grayling, the then Lord Chancellor, visits Saudi Arabia.

 

11 September 2014

The following are tweeted from the UK embassy in Saudi Arabia’s Twitter Account:

There does not appear to have been a contemporaneous press notice or media release.

 

30 September 2014 (or 21 January 2015, date unclear)

An update to the FCO’s “Country of Concern” 2013 Report for Saudi Arabia states:

“…on 10 September, the Secretary of State for Justice, Chris Grayling, visited Saudi Arabia and signed a Memorandum of Understanding (MoU) with the Saudi Arabian Minister of Justice. This MoU is a mechanism for dialogue and exchange of expertise on justice, legal and human rights matters. Mr Grayling raised human rights concerns during his visit, and met the Human Rights and Legal Committees of the Majlis al Shura, and the National Society for Human Rights.” 

 

December 2014

In the so-called “mid-year report” of the Ministry of Justice, covering April to September 2014:

“The Secretary of State visited Riyadh in September 2014 to sign a Memorandum of Understanding on Judicial Cooperation, to build upon the existing bilateral justice relationship, promote UK legal services in Saudi Arabia and raise awareness of the upcoming Global Law Summit. He also met UK lawyers with offices in Riyadh. Discussions were also held on judicial cooperation, King Abdullah’s reform programme, and human rights issues.”

There is also in that report the first express mention of JSi in any official MoJ document –

 Just Solutions international (JSi), is the commercial brand for the National Offender Management Service (NOMS) promoting products and services to international justice markets.

In August 2014, JSi submitted a £5.9m proposal to the Kingdom of Saudi Arabia, Ministry of Finance to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service.

 

23 January 2015

The MoJ press office provides the following answer to a question:

Q) Can I please have a copy of the MoU signed between the Secretary of State and Saudi Arabia?

A) This is a shared document with the Saudi government so we are not in a position to publish it at present.

 

25 January 2015

Someone sends to the MoJ a Freedom of Information request as follows:

“Please provide an electronic copy of the September Memorandum of
Understanding on Judicial Cooperation between the United Kingdom
and the Kingdom of Saudi Arabia, which the Lord Chancellor and
Secretary of State signed in Riyadh on behalf of the United
Kingdom, including any appendix and all schedules, annexes and
enclosures.”

 

19 February 2015

The MoJ initially responds to the FoI request as follows:

“I can confirm that the department holds the information you have asked for, and it may be subject to a qualified exemption.

In this case, the information you are seeking may be exempt under Sections 27(1) and 27(2) of the Act as it relates to the conduct of international relations.

In line with the terms of this exemption in the Freedom of Information Act, I have to consider whether it would be in the public interest for us to provide you with the information requested. However, I have not yet reached a decision on the balance of the public interest in this case.

Under Section 10(3) of the Act, I am able to extend the statutory time limit of 20 working days where the information held may be exempt under a qualified exemption, and I require more time to consider the balance of the public interest when deciding whether to disclose the information or not.”

 

12 March 2015

The FCO’s “Country of Concern” Report 2014 for Saudi Arabia notes the following:

“There were significant changes in the justice sector. On 10 September, the Secretary of State for Justice, Chris Grayling, visited Saudi Arabia and signed a Memorandum of Understanding (MoU) with the Saudi Arabian Minister of Justice, Dr Muhammed Abdul-Kareem al-Issa. This should act as a mechanism for dialogue on human rights issues and an exchange of expertise on justice and legal matters. It follows up on the work undertaken by Dr al-Issa to implement a largescale reform programme aimed at judicial modernisation in Saudi Arabia.”

The same report mentions the JSI contract bid:

“To assist in the justice sector, the UK National Offender Management Service, through their commercial arm, Just Solutions international, submitted a bid for a contract to conduct a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service.”

 

18 March 2015

The MoJ releases its decision to not disclose the MoU in response to the FoI request.  The MoJ’s reasoning is as follows:

“I wrote to you on 19 February, indicating that I needed further time to consider the terms of your request. I have now completed my considerations.

I can confirm that the department holds the information you have asked for, and I consider it is subject to a qualified exemption.

In this case, in my view the information you are seeking is exempt under Sections 27(1) and 27(2) of the Act as it relates to the conduct of international relations.

A UK Government Department is not obliged to provide information requested if its release would prejudice international relations. Specifically, the document which you have requested is one that is confidential between the UK Government and the Government of the Kingdom of Saudi Arabia. This type of document is covered by the provisions of Section 27(2) of the Act, which deal with confidential information obtained from another State. In addition, as the disclosure of confidential material obtained from another State would be likely to prejudice future relations between the UK Government and the Government of the Kingdom of Saudi Arabia, Section 27(1) of the Act is also engaged.

In line with the terms of these exemptions in the Act, I have nevertheless to consider whether it would be in the public interest for me to provide you with the information requested, despite the exemptions being applicable. In this case, I have concluded that the public interest favours withholding the information you have requested.

When assessing whether or not it is in the public interest to disclose the information you have requested, I have taken into account the following factors:

Public Interest considerations favouring disclosure

• Disclosure would support the wider Government commitment to transparency and may encourage greater understanding of the general public about the Ministry’s policies, activities and agreements with foreign nations.

• The information in question relates to how UK Government Departments interact with foreign Governments to share knowledge and best practice. The UK’s agreement with the Kingdom of Saudi Arabia has been subject to debate in the media and a level of public interest, to which disclosure of the information could assist in a wider public understanding of the nature of the agreement.

Public Interest considerations favouring withholding the information

• The document was agreed to be confidential between the two Governments. As the UK Government engaged in the preparation and signing of this document on a confidential basis, I judge it reasonable for the Government of the Kingdom of Saudi Arabia to expect that the UK Government would not share its contents with a third party. My judgment is that to do so unilaterally might harm future relations with the Kingdom of Saudi Arabia, and may discourage them from entering into agreements or sharing information with the Department in future. In my view this risk extends across all areas of Government.

• It is important for non-UK Governments or bodies to know that they can discuss and agree issues with the UK Government in an atmosphere of confidentiality. Releasing information provided in confidence without agreement may damage the wider public interest beyond the information in the scope of this request, by making it less likely that other Governments or bodies would share confidential information in the future. As such, it is of prime importance for the UK Government to maintain consistency in this area. The potential impact of disclosure has, as I intimated earlier, wider implications than the relationship between the UK Government and the Government of the Kingdom of Saudi Arabia in this particular context.

I have therefore reached the view that, on balance, the public interest is better served by withholding this information under Section 27(1) and 27(2) of the Act.”

 

By way of background, Section 27 of the Freedom of Information Act 2000 provides:

“27 International relations.

(1)  Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice—
(a)  relations between the United Kingdom and any other State,
(b)  relations between the United Kingdom and any international organisation or international court,
(c)  the interests of the United Kingdom abroad, or
(d)  the promotion or protection by the United Kingdom of its interests abroad.

(2)  Information is also exempt information if it is confidential information obtained from a State other than the United Kingdom or from an international organisation or international court.

(3)  For the purposes of this section, any information obtained from a State, organisation or court is confidential at any time while the terms on which it was obtained require it to be held in confidence or while the circumstances in which it was obtained make it reasonable for the State, organisation or court to expect that it will be so held.  […]”

 

17 April 2015

The refused FoI request is referred to the Information Commissioner’s Office.

At some point between this reference and 10 August 2015, the MoJ in correspondence with the ICO shifts its position from disclosure being “likely” to have a prejudicial effect to that it would have a prejudicial effect on the relationship between the two Governments …. to the detriment of the United Kingdom” [emphasis in original].

 

Also in April 2015, the MoJ submit their final bid for the Saudi prisons contract (see here).

 

21 July 2015

The MoU is mentioned a number of times by opposition MPs (including Jeremy Corbyn) in the Westminster Hall debate on Saudi Arabia.

 

29 July 2015

The MoU is referred to in paragraph 10 of the MoJs’ defence document in a judicial review application before the High Court.

MoUDefence

 

10 August 2015

The ICO decides against ordering the MoJ to disclose the MoU.  The full decision is here, but it is too long to quote in full in this timeline.

The key paragraphs of the decision are:

“27. Having duly considered the arguments put forward by MoJ, and having viewed the withheld information, the Commissioner is satisfied that there would be a real and significant risk of prejudice if the withheld information were to be disclosed. Acknowledging that prejudice to the relationship between the UK and the Kingdom of Saudi Arabia – in the way predicted by MoJ – would occur, the Commissioner accepts that, in the circumstances of this case, the higher threshold of likelihood is met.

28. He therefore finds the exemption engaged in relation to the information withheld by virtue of section 27(1)(a) and has carried this higher level of likelihood through to the public interest test.

[…]

41. However, in the circumstances of this case, the public interest against disclosure is that in avoiding prejudice to international relations, specifically UK/Kingdom of Saudi Arabia relations. The relevant considerations in reaching a judgement on the balance of the public interest therefore extend beyond the actual content of the withheld information itself.

42. In the Commissioner’s view it is strongly in the public interest that the UK maintains good international relations. He considers that it would not be in the public interest if there were to be a negative impact on the effective conduct of international relations as a result of the release of the information at issue in this case.

43. From the evidence he has seen, the Commissioner is satisfied that disclosure of the withheld information represents a significant and real risk to the UK’s relations with the Kingdom of Saudi Arabia. In his view, it is clear that disclosure in this case would not only damage the UK’s relationship with the Kingdom of Saudi Arabia on this issue, but has the potential to harm the relationship between the two Governments across a range of issues. The Commissioner is satisfied that such a broad prejudicial outcome is firmly against the public interest and he has therefore concluded that the public interest in maintaining the exemption outweighs the public interest in disclosing the information.

44. In light of that conclusion, the Commissioner has not gone on to consider the FCO’s application of section 27(2) to the same information. He accepts, however, that the issue of any breach of confidentiality in this case is very closely related to the damage which would be caused to relations between the UK and the Kingdom of Saudi Arabia.”

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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.

*

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.

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.

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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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