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 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.

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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.

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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.

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ADD, 26th September 2015

This post prompted some positive responses on Twitter:

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MoJ refuses to disclose details of its commercial proposal to the Saudi state

The below has been received from the Ministry of Justice. It is a refusal to disclose anything to do with the MoJ’s proposal to provide services on a commercial basis to the Saudi state.

 

Freedom of Information Request

Dear Mr Green,

 Thank you for your email of 16 January in which you requested the following information from the Ministry of Justice:

Can I please have all documents relating to the proposal of NOMS to the Saudi Arabian government referred to at page 6 of https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/391930/ministry-of-justice-mid-year-report-to-parliament-2014-15.pdf

 Please can I have all documents provided to and from a Minister in respect of the above proposal.

Your request has been handled under the Freedom of Information Act 2000.

I can confirm that the Ministry of Justice holds information that you have requested, but in this case we will not be providing it to you as it is exempt from disclosure under section 41(1) and section 43(2) of the Act.

Section 41(1)

The information held by the Ministry of Justice includes documents supplied in confidence by the Kingdom of Saudi Arabia (KSA) in relation to the proposal, and we believe that their disclosure would create an actionable breach of confidence. We are not obliged to provide information that has been provided in confidence to the department (section 41(1) of the Act). The terms of this exemption in the Act mean that we do not have to consider whether or not it would be in the public interest for you to have the information.

Section 43(2)

The Ministry of Justice is not obliged to provide information where we believe that disclosing the information would be likely to prejudice the commercial interests of any person including the department which holds it (section 43(2) of the Act).

In particular, the Ministry of Justice is in an ongoing competitive process with its proposal to the KSA, and the bid and related documents contain commercially confidential information. Disclosure of the information would be likely to disrupt the negotiation process and have an adverse impact on the bid.

In line with the terms of this exemption in the Freedom of Information Act, we have also considered whether it would be in the public interest for us to provide you with the information, despite the exemption being applicable. When assessing whether or not it was in the public interest to disclose the information to you, we took into account the following factors:

Public interest considerations favouring disclosure

There is a public interest in knowing how and why the Ministry of Justice enters into commercial relations with overseas countries and which countries these are.

Public interest considerations favouring withholding the information

Disclosure would be likely to prejudice the commercial interests of the Ministry of Justice by affecting adversely:

– its negotiating position in the ongoing Just Solutions International (JSi) bid process with KSA;

– the prospects of a successful outcome for the JSi bid with KSA due to the likely negative impact that would result from disclosure on the evaluation of the bid by the Saudi Arabian authorities; and

– future commercial (JSi) bids with other overseas governments and agencies seeking justice assistance from JSi if details of the Saudi Arabian bid were disclosed which, in turn, is likely to have a detrimental effect on the future commercial prospects for JSi.

We have concluded that, on balance, the public interest is better served by withholding this information under section 43(2).

You can find out more about sections 41 and 43 by reading the extracts from the Act, and some guidance points we consider when applying these exemptions, at the end of this letter.

You can also find more information by reading the full text of the Act, available at http://www.legislation.gov.uk/ukpga/2000/36/contents.

You have the right to appeal our decision if you think it is incorrect. Details can be found in the How to Appeal section at the end of this letter.

Disclosure Log

​You can also view information that the Ministry of Justice has disclosed in response to previous Freedom of Information requests. Responses are anonymised and published on our online disclosure log which can be found on the MoJ website: https://www.gov.uk/government/organisations/ministry-of-justice/series/freedom-of-information-disclosure-log.

Yours sincerely

[  ]

 

 

__________________________

 

Just Solutions international: a timeline

10 February 2015

Last updated: 10 February 2015

This timeline sets out and links to the public domain information about  the shadowy and curious “Just Solutions international” (“JSi” – complete with gimmicky lower-case “i”).  

This timeline is intended to complement my substantive posts on JSi and will be updated from time to time.

 

2004

The Home Office publish the Carter Review, Managing Offenders, Reducing Crime: A New Approach.

The Carter Review proposess the “establishment of a National Offender Management Service – restructuring the Prison and Probation Services – with a single Chief Executive accountable to Ministers for punishing offenders and reducing re-offending”.

And so the National Offender Management Service (NOMS) is created, in effect combining the prison service and the probation service.

 

2008

NOMS is restructured and re-established as an executive agency of the Ministry of Justice.

The Ministry of Justice retains responsibility for “strategic oversight” of policy and direction and NOMS is expected to commission and provide services which deliver to a specified framework.

 

2010

Coalition takes office.  Kenneth Clarke QC MP becomes Lord Chancellor and Secretary of State for Justice.

 

2012

According to LinkedIn, NOMS personnel date that their JSi positions started in 2012.  One individual, who I will not name here, has on his LinkedIn profile:

CEO

Just Solutions International

– Present (2 years 8 months)London

Leadership of Just Solutions International to allow the sharing of best practice in prison and probation services with other Governments and agencies.

 He also describes himself as:

Head of Commercial Development

UK Ministry of Justice

– Present (3 years 11 months)UK

Commercial activity including development and sale of innovative Criminal Justice Systems – Includes IT based payment by results, case and contract management systems; consultancy and programmes on all aspects of offender work

 

July 2012

There is no (express) mention of Just Solutions international in the 2011-12 Annual Report of Ministry of Justice (for year ending 31 March 2012).

 

September 2012

Chris Grayling replaces Clarke to become Lord Chancellor and Secretary of State for Justice

 

October 2012

The JSi web domain was registered on 4 October 2012.

 

June 2013

There is no mention of Just Solutions international in the 2012-13 Annual Report of Ministry of Justice (for year ending 31 March 2013).

 

July 2013

On 3 July 2013 JSi is discussed on the PricewaterhouseCoopers blog.  Other than (perhaps) LinkedIn pages, this is the first public mention of JSi.

The blogpost says:

Another example currently sits within the National Offender Management Service (NOMS), which is exploring an option to establish a not-for-profit organisation to market its expertise in Justice internationally. The new operation, Just Solutions International (JSi), will re-invest any surplus into research that supports the work of NOMS.

Because spending cuts have diminished the budget available for this research, JSi is an example not only of government earning income on its IP, but also of it using that income to maintain a high standard of service delivery.

In January 2015, neither MoJ nor PwC were able to explain how PwC knew so much about JSi as early as July 2013.

 

October 2013

On 9 October 2013, Grayling refers to JSi in a speech to the World Probation Congress.  This seems to be the first mention of JSi by a government minister.

According to the official speech, Grayling says:

The last few years have seen a major advance in the United Kingdom in our expertise in finding ways of managing offenders and re-assimilating them into society.

Integrated Offender Management, for example, is a new way of seeking to prevent re-offending and promote rehabilitation. Governments from around the world are coming to us for assistance on justice matters, looking to take advantage of the knowledge, skills and expertise we have developed.

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.

In response to this interest from around the world, we are setting up Just Solutions International – a social enterprise – to enable this service to be delivered in a commercial manner.

It will be able to make available knowledge and expertise relating to offender management services to organisations in other countries that work with offenders. The new body is currently being piloted and we are looking to launch it in April 2014.

Our intention is that Just Solutions will be able to provide you with access to all the services you will hear about during this conference, including, to name but a few: – development and improvement of probation services; – prison estates, prison design, prison building and procurement; – cutting-edge electronic monitoring systems; and – payment-by-results and reducing re-offending mechanisms.

 

January 2014

There is no mention of JSi in the (first) so-called “mid-year report” of MoJ to Parliament, coverning MoJ activity from April to September 2013 .

 

February 2014

JSi is referred to (though not named) in the UKTI Security Exports Strategy of 2014 (host web page).

Page 19:

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.

Page 25:

Offender management

The UK offender management capability is based on the principles of holding prisoners securely, reducing the risk of prisoners re-offending and providing safe and well-ordered establishments and solutions in which we treat those convicted of offences humanely, decently and lawfully.

The custody estate in the UK consists of adult prisons, young offenders institutions and secure training centres. The majority of these are run by the Prison Service but the UK also has significant experience in terms of privately run prisons and detention centres.

Community sentencing has been used widely in the UK and offender monitoring systems, managed by private security companies (reporting breaches to police) are well established.

 

March 2014

The JSi brochure appears to have been created on “Thu 06 Mar 2014 11:35:13 GMT”.

By coincidence, the JSi brochure also happens to use exactly the same distinctive “legal disclaimer” language as the glossy brochures of PricewaterhouseCoopers.

 

April 2014

This is the date stated in Grayling’s October 2013 speech for the formal launch of JSi. There appears to be no public statement in respect of the launch.

 

June 2014

There is no mention of Just Solutions international in the 2013-14 Annual Report of Ministry of Justice (for year ending 31 March 2014).

 

August 2014

According to the December 2014 mid-year report (see below), 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”.

We are also are told later that “[a]lso in August, JSi submitted a large scale bid to the Royal Oman Police (ROP) proposing assistance for the design of a new prison. Discussions are currently taking place with ROP about further learning and development training programmes”.

 

September 2014

Grayling signs a “Memorandum of Understanding” with the Saudi government.

The MoJ have since refused to disclose what the Memorandum of Understanding contains.

 

December 2014

In December 2014 comes the first express mention of JSi in any official MoJ document – the (second) so-called “mid-year report” of the Ministry of Justice , covering April to September 2014:

 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.

Also in August, JSi submitted a large scale bid to the Royal Oman Police (ROP) proposing assistance for the design of a new prison. Discussions are currently taking place with ROP about further learning and development training programmes”. 

JSi has also recently won a bid to the value of £848k (€1,071k) to provide support with the development of a Probation Service in Macedonia.

 

The shadow Lord Chancellor Sadiq Khan begins to take an interest, and he asks the following written question

Sadiq Khan (Tooting): To ask the Secretary of State for Justice, what contracts his Department has awarded to Just Solutions International in each of the last five years; what the value and length of each such contract is; and with whom in his Department each such contract was signed.

And he also asks:

Sadiq Khan (Tooting): To ask the Secretary of State for Justice, whether Just Solutions International is a contractor or a sub-contractor in the current electronic monitoring contract.

 As of 10 February 2015, I cannot trace answers to these questions.

 

January 2015

Sadiq Khan asks the following written question

Sadiq Khan (Tooting): To ask the Secretary of State for Justice, which countries Just Solutions International (JSI) has worked with since it was established; what contracts it has with foreign companies; what visits Ministers in his Department have made relating to JSI; and what payments JSI has received from foreign contracts.

[Add 10 Februray 2015] This was answered on 10 February 2015 as follows:

Just Solutions International (JSi) is a brand within the National Offender Management Service (NOMS). Over the last two years, NOMS has worked with the following countries, some of them under the JSi brand. As the NOMS commercial work through the JSi brand is not separated out from non-commercial international work, the list below simply indicates where a charge to the country or the EU was applied (*). This does not include visits by other Governments to the UK for purposes of information exchange:

Pakistan

Libya

Oman (*)

Seychelles (*)

Nigeria

Macedonia

Bermuda (*)

Cayman Islands (*)

China (*)

Kosovo (*)

Turkey (*)

NOMS does not have any contracts with foreign companies related to commercial work routed through the JSi brand and has not previously entered into any nor received payments relating to such contracts.

No Ministerial visits abroad have been arranged to support NOMS’ commercial work.

Specifics of payments for commercial contracts delivered cannot be provided as they are commercially sensitive.

Part of the rationale for our work with other countries is to impact positively on human rights practices. We believe that by bringing our standards on issues such as human rights into international delivery we will improve detention practices. Our correctional services provide a gold standard in human rights, and are well viewed by other Governments who take a similar view to us on the paramount importance of the protection and promotion of human rights. When other countries approach us for assistance, we are clear that we will only offer advice and support that complies with our own stringent human rights standards.

It has been government policy for many years to work with overseas governments and help them develop their criminal justice systems.

 

Khan also asks the following written question:

Sadiq Khan (Tooting): To ask the Secretary of State for Justice, what Just Solutions International’s operating profit or loss has been in each of the last five years.

The latter question was answered on 8 January 2015:

Just Solutions International is not a trading body but is part of the National Offender Management Service. It does not therefore make separate profits or losses.

 

The public flogging of a writer in Saudi Arabia prompts interest in JSi’s commercial proposal to the Saudis.

Somebody spots the mention in the December 2014 mid-year report and alerts journalist David Hencke.  On 10 January 2015, Hencke reports on the Saudi commercial proposal at Tribune and then later on 16 January 2015 on his own blog.

 

18 January 2015 – Grayling is asked about the proposed Saudia deal by Andrew Neil on the Sunday Politics.  Grayling says: “It is right and proper that we as a nation try to work with other nations to improve their systems.” and “This is something I am looking at very carefully.”

 

20 January 2015 – my FT post on the proposed Saudi deal.

 

23 January 2015, the MoJ press office having refused to answer my intial questions on JSi, provide the following answers:

1. Can I please have a copy of the MoU signed between the Secretary of State and Saudi – https://twitter.com/UKinSaudiArabia/status/510040242481799168/photo/1

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

2. Can I please have a copy of the commercial proposal put to the Saudis

A) This is a bid that is under consideration in a competitive process and contains commercially confidential information.

3. Can you provide full details to what is to be offered to the Saudis under the commercial proposal

A) See answer 2. What we can say is that the bid relates to scoping of staff training and organisational design only.

4. Can you provide set out the extent of the civil service resources which are to be used in the proposal

A) If approved the bid will be fully funded by the client Government, will not cost the British tax payer a single penny and will generate a surplus to be used to support our own services.

5. When is the proposal expected to be signed?

A) Our bid is under consideration and may not be successful. We do not know the timing of bid evaluation and decision making – this depends on the pace of the Saudi Procurement process.

6. What is the answer to Amnesty’s questions as follows: Beyond the usual aspirational language, can Chris Grayling demonstrate that Just Solutions international will actually be able to concretely improve detention practices in Saudi Arabia without becoming complicit in abuse? For example, is JSi going to be challenging and seeking to prevent abuses when it comes across malpractice, and indeed what human rights safeguards and training are going to be built into any programme?

A) We believe that by bringing our standards on issues such as human rights into international delivery we will improve detention practices. We should recognise that our correctional services are well viewed by other Governments who also understand our approach to human rights. When other countries approach us for assistance therefore they do so in full knowledge that we will only offer advice and support that complies with our own human rights standards. We have already seen and challenged practice in other countries and have been instrumental in the change of practice in other countries.

7. What is the current budget for JSi?

A) Any commercial work undertaken by NOMS falls within the overall NOMS budget. The aim is that it covers the costs of NOMS commercial and other international work and generates a surplus to invest in our own services.

8. Other than the mid-term report, what mention has there been of JSi in any official publications?

A) There is a reference to JSi in the UKTI Security Exports Strategy (2014)

9. What is the headcount for JSi?

A) NOMS has a team which covers international work and externally funded programmes. Some of the Civil Servants in this team will also deliver the Commercial work as well as the non-commercial part of the job.

10. Who paid for the “.com” website for JSi and why is it not a “.gov.uk” website?

A) Hosting is funded by income generated and the website development was done by internal NOMS staff. The decision to create an external site was made as a result of an accreditation process that required a web presence that is separate to the MoJ site.

11. Why has the Secretary of State now said he is looking at the Saudi proposal carefully? What does this mean in practice?

A) All international activity considered by NOMS is subject to a careful assessment process and sign off by MoJ; FCO and our local Embassies. This includes an assessment about whether our possible activity would improve human rights outcomes. This process was completed prior to our bid to Saudi. We would expect to repeat this process if the Saudi Government decided to offer NOMS the contract. In that case 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.

12. Can you set out the commercial experience/expertise of those engaged in the JSi project? A quick look at open-source sources reveals little or no commercial experience/expertise at all;

A) Within the Unit delivering this we have a range of people with private sector and commercial background.

13. can you identify all private sector organisations/consultancies involved in the JSi project.

A) None currently

In your correspondence with [civil servant] you also raised the issue of the Cornerhouse [sic] case and asked whether it is appropriate for the Lord Chancellor and the MoJ to be entering into a commercial relationship with the Saudi state. Here is a statement on that particular issue:

A MoJ spokesperson said:
“The British Government’s position on human rights is a matter of public record and we regularly raise our human rights concerns with the Saudi Arabian authorities at the highest level. No aspect of our commercial relationships prevents us from speaking frankly and openly to them about these or other issues.”

 

25 January 2015 – my detailed Jack of Kent post on the conflict of interest caused by the proposed Saudi deal.

 

Hencke does a further post on 26 January 2015.

 

Follow-on pieces also at the Independent, Observer, and Mail online.

 

27 January 2015 – MoJ refuse to answer any further questions on JSi.

 

28 January 2015 – Amnesty International write to MoJ.

 

February 2015

The following exchange takes place at oral questions for the Secretary of State to Justice on 3 February 2015:

Sadiq Khan (Tooting) (Lab): We already know how little the Justice Secretary thinks of our international human rights obligations, given that he wants to repeal the British Human Rights Act and walk away from the European convention on human rights. What is the Ministry of Justice’s motivation for signing a £5.9 million contract with a country whose justice system is widely condemned for the use of torture—which is what a sentence of 1,000 lashes amounts to—and of execution by beheading?

Chris Grayling: We have not signed a contract. Under this Government and under the last one, our Departments have worked with other Governments around the world to try to encourage improvements and best practice in their justice systems. I believe that that is the right thing to do. We should try to influence countries to move their justice systems in the right direction, and we will continue to do that.

Sadiq Khan: I look forward to hearing about the best practice for beheading.

 

Sadiq Khan also asks the following written question

Sadiq Khan (Tooting): To ask the Secretary of State for Justice, what consultant, non-executive directors and associates have worked with Just Solutions International since it was established; when each such person was appointed; and what the remuneration of each such person for that work is.

 

Footnote: LinkedIn evidence on the range of JSi activity

Other than the JSi brochure and website, there is public domain information on the activities of JSI on the LinkedIn profiles of JSi “directors”.  This cannot be dated exactly (at least by me).  I do not propose to link to the pages of individual JSi staff, but the information is as follows.

According to the 2015 LinkedIn profile of one “director” of JSi:

Just Solutions International (JSi) is the commercial vehicle for the National Offender Management Service (NOMS) that provides access to the knowledge, skills and intellectual property of the Ministry of Justice in England and Wales. JSi that we can scope and develop solutions for governments and criminal justice agencies across the world.

Using the success achieved in modernising the justice system in the UK we have successfully developed and delivered programmes in the Middle East, North Africa and the Caribbean. Using staff and other resources from the UK MoJ and the National Offender Management Service and our partners our offer is broad and tailored to our customers and partners, and can span the following:

– Consultancy based advice and review of current prison or community corrections/probation services;

– Reducing Reoffending programme design including payment by results; offender learning and employment; offence-specific interventions;

– Benchmarking to ensure that costs of prisons and community sentences services are understood and providing value for money;

– Staff learning and development in prison and community justice/probation services;

– Prison and police cell design and estates management systems;

– Procurement systems and supply chain management;

– IT based offender risk assessment and case management to Governments and Justice providers outside the UK.

Another LinkedIn profile of a JSi director is in similar terms:

JSi is a commercial vehicle that provides access to the knowledge, skills and intellectual property of the Ministry of Justice in England and Wales so that we can scope and develop solutions for governments and CJ agencies across the world.

Using the success achieved in modernising the Justice system in the UK we have successfully developed and delivered programmes in the Middle East; North Africa and Caribbean. Using staff and other resources from the UK MoJ and National Offender Management Service and our partners our offer is broad and tailored to our customers and partners and can span the following:

– Consultancy based advice and review of current prison or probation services;

– Reduce reoffending programme design including payment by results; Social Impact Bonds; offender learning and employment;

– Benchmarking to ensure that costs of prison and community sentence services are understood and providing value for money;

– Staff learning and development in prison and probation services;

– Prison and police cell design and estates management systems;

– Procurement systems and support to ensure the right services are contracted and that they are effectively managed;

– IT based offender risk assessment and case management to Governments and Justice providers outside the UK

– Intervention programmes to adjust the behaviour of offenders.

 

 

________________________________________________

If there is any further information available, please post it below. Please do not name any civil servants.

The Ministry of Justice and the Saudis: ten more unanswered questions

27th January 2015

At 10:46 this morning I emailed the following questions to the Ministry of Justice (MoJ) press office for answers by 17:00 (for a follow-up piece to this detailed post on the serious conflict of interest created by the proposed MoJ commercial deal with the Saudi state):

1. Who is the Saudi representative at the [global law] summit? [MoJ had confirmed there was one.]
 
2. The Saudi proposal is described [to be] competitive – has it been advertised?  
 
3. Also, re the Saudi proposal, what is the specification the MoJ is bidding against, and what are the bidding criteria?
 
4. How much will the summit cost (a) the MoJ and (b) central government generally?
 
5. How many contracts have so far been entered into by JSi? Or will the Saudi deal be the first?
 
6. On LinkedIn, JSi personnel seem to have been in post since 2012 – how much has the JSi project cost MoJ since 2012?
 
7. There seems to be at least four civil servants working on JSi full time – can this be confirmed?
 
8. If there are no external advisers involved, why did PwC describe JSi on its blog?  And why does the JSi brochure happen to use PwC boilerplate?

 

At 10:54, a senior member of the press office responds helpfully:

Thanks – we’ll get onto these

 

At 11:11, I email further:

Many thanks. I missed out the one below, sorry:

9. What are the titles, sub-titles and the topics covered in the Saudi MoU? (I see no reason why this cannot be disclosed, even if you cannot disclose the document itself.)

 

And at 13:30 I email:

Oh, and this:

 10. What will be the termination provisions in the proposed commercial deal?  In what circumstances will either party be able to terminate the agreement?
 
Sorry, should have asked before.

 

At 16:46 I get this encouraging response from the same senior press officer:

Hi – almost there on these but won’t quite hit 5 – should be with you by half five at latest.

 

But then at 17:55:

Evening

I’m very sorry but I’m afraid the department has no further comment to make on any of the below questions.

 

So was the 16:46 email intended to be false and misleading?  Or, if it was not, what happened between 16:46 and 17:55?

And why does the MoJ not want to provide information in answer to these ten straightforward questions?

A conflict of interest: the Saudi state and the UK’s Ministry of Justice

25th January 2015

The proposed commercial deal between the Saudi Arabian state and the UK’s Ministry of Justice (MoJ) – whereby the Saudis will pay some £5.9 million for MoJ assistance for its punishment system – prompts a number of concerns.

The first concern is in respect of transparency.  The  MoJ is refusing is disclose any detailed information about the commercial proposal.  The MoJ is also refusing to disclose the accompanying Memorandum of Understanding (MoU) which was signed between Saudi Arabia and the MoJ in September last year (and the signing of which was publicised by the UK embassy in the tweet above).

The second concern regards domestic policy.  Is it appropriate, at a time of severe cuts, for the MoJ to divert scarce civil service resources from the English and Welsh offender management system to assist a punishment regime such as that of Saudi Arabia?  And, related to this, can the UK really claim to have any particular expertise in offender management, in view of the regular damning inspection reports?

The third concern is about whether the proposed assistance for the Saudi punishment system will, in fact, improve the inhumane and brutal treatment of prisoners.  For example, as Amnesty International has asked about this proposed assistance, will the MoJ be “going to be challenging and seeking to prevent abuses when it comes across malpractice, and indeed what human rights safeguards and training are going to be built into any programme”?  In other words, what positve difference will the proposed assistance make?

The fourth concern is the simple of one of legitimacy: will the proposed assistance wrongly offer legitimacy – a valuable seal of approval – to the Saudi punishment system?

The fifth concern is perhaps the most serious, from the point of view of the legal system of England and Wales.  Will the proposed commercial deal create either an actual or apparent conflict of interest for the MoJ?

This final concern is not a fanciful point.  In 2006, the Saudi state forced the UK’s serious fraud office to drop an investigation into BAe (for details, including documented evidence, see the 2008 “Corner House” decision of the House of Lords – a case which should be read by anyone interested in the influence the Saudis have over the UK state). There are many examples of those involved with the Saudi state seeking to coerce the legal process in this jurisdiction (see here and here).

As the MoJ is responsible for the integrity of the legal system of England and Wales – and the cabinet minister responsible for the department even has a legal – some would say, constitutional – duty to uphold the rule of law – is it open to the MoJ to enter into a commercial relationship with a foreign state which as Corner House and other examples show has a documented record of seeking to coerce the domestic legal process?

 

However, it is one thing to articulate grounds of concern; it is, of course, another to be satisfied that those grounds have any substance.

So: is this proposed deal a problem?

And what is the available information?

What follows (at length) is what appears to me to be the relevant information about, in order, the MoJ, the National Offender Management Service, “Just Solutions international” (JSi), the MoU, and the proposed commercial deal.  I will then set out the extent to which I think the concerns are made out and why, in particular, a commercial relationship between the MoJ and the Saudi regime would create an unacceptable conflict of interest for the MoJ.

 

The Ministry of Justice

The MoJ is a fairly new UK government department. (A note: although the MoJ has responsibilities across the UK, it is responsible for the legal system of England and Wales, and not for the separate jurisdictions of Scotland and Northern Ireland.)

In essence, the department was formed out of the old Lord Chancellor’s Department (which was responsible for the court system of England and Wales) with additional responsibilities for prisons and probation – the punishment (and rehabilitation) system.  It seemed a Good Thing at the time, and the notion of an integrated court-prison-probation system is one which many would nod-along with.

The cabinet minister for this new larger department ended up with two titles. First, the minister would be a “Secretary of State” – the usual title for a cabinet minister with departmental responsibilities.  And the minister would also hold the ancient title of “Lord Chancellor” – nominally head of the judiciary and historic supervisor of the courts.  The then Prime Minister had intended to abolish the latter title but, being constitutionally illiterate, he had not realised it would not be possible without extensive legislation.

And the two titles pointed to a tension in the department: on one hand, the minister was responsible for a spending department, with all the budget pressures that involved; and, on the other hand, the minister had a special position in respect of the integrity of the legal system.  The Lord Chancellor was there in part to defend the independence of the judiciary, and the post was usually given to a distinguished lawyer-politician at the end of their career.

When the department was created there were fears that the important role of the Lord Chancellor in respect of the rule of law would be diminished; and that is why in the very first provision of the Constitutional Reform Act 2005 was set out that the duty of the Lord Chancellor in respect of defending the integrity of the legal system would be unaffected:

1.  The rule of law

This Act does not adversely affect—

(a) the existing constitutional principle of the rule of law, or

(b) the Lord Chancellor’s existing constitutional role in relation to that principle.

This is a carefully worded provision. It does not create some statutory duty for the Lord Chancellor to uphold the rule of law.  It instead recognises a pre-existing duty.

Part of this new Ministry of Justice was re-titled the National Offender Management Service (NOMS).  In its own words:

We are accountable for how prisons are run in England and Wales. Through HM Prison Service we manage public sector prisons in England and Wales.

We also oversee probation delivery in England and Wales through the National Probation Service and community rehabilitation companies.

However, NOMS does not have any separate legal existence apart from the MoJ.  Its designation as an “executive agency” has administrative but not legal meaning. It is part of the MoJ, and its staff are civil servants and its resources are those of the civil service, funded by the taxpayer.

 

Just Solutions international

Just Solutions international (JSi) – complete with a gimmicky lower-case “i” for international – is something very few had heard of until the proposed MoJ deal with the Saudis came to attention.

JSi has its own “.com” website.  It is worth taking time to look around it.  There is even a glossy brochure.

On its “about us” page, you are told:

JSi provides a range of solutions across the Justice system, from policing through courts to prisons and community sentence delivery. A particular focus is on reducing re-offending and recidivism.

JSi has been created as a social enterprise by a team of entrepreneurs within the UK Justice system.

We deliver our services to customers in conjunction with NOMS.

This is at best misleading: JSi is not “in conjunction” with NOMS.  It is part of NOMS.  And its personnel are better described as civil servants within the MoJ than “a team of entrepreneurs within the UK Justice system” (whatever that could mean).

JSi is a label for NOMS, which in turn is a label within MoJ.  As I have already set out at the FT, JSi is not even a trading fund under the relevant legislation, and the MoJ has had to admit to parliament that JSi does not even keep separate profit and loss accounts.

JSi seeks to give the impression with its .com website (instead of the more appropriate .gov.uk sites for central government work) and heady talk of entrepreneurship, being a “trading arm” and representing NOMS “on all commercial issues” that it is something other than just civil servants within the MoJ with no greater legal power to sell civil service assets than any other civil servants.

In essence, an ambitious group of civil servants have given themselves a gimmicky name and set up their own .com website with the intention of selling their department’s assets somehow in “conjunction” with, well, themselves.

There is very little official information about JSi other than on their website.  On 9 October 2013, the Lord Chancellor and Secretary of State referred to the group in a speech to the World Probation Congress, where he said:

In response to this interest from around the world, we are setting up Just
Solutions International – a social enterprise – to enable this service to be
delivered in a commercial manner.

It will be able to make available knowledge and expertise relating to
offender management services to organisations in other countries that
work with offenders.

The new body is currently being piloted and we are looking to launch it in
April 2014. Our intention is that Just Solutions will be able to provide you
with access to all the services you will hear about during this conference,
including, to name but a few:
– development and improvement of probation services;
– prison estates, prison design, prison building and procurement;
– cutting-edge electronic monitoring systems; and
– payment-by-results and reducing re-offending mechanisms.

 

This, however, was not the first public mention of JSi.  For some reason, three months before the Lord Chancellor and Secretary of State’s announcement of its launch, the commercial opportunities for JSi is discussed on the PricewaterhouseCoopers blog.  Here, we told:

[NOMS] is exploring an option to establish a not-for-profit organisation to market its expertise in Justice internationally. The new operation, Just Solutions International (JSi), will re-invest any surplus into research that supports the work of NOMS.

Because spending cuts have diminished the budget available for this research, JSi is an example not only of government earning income on its IP, but also of it using that income to maintain a high standard of service delivery.

How PricewaterhouseCoopers (complete with gimmicky lower-case “w”) knew so much about JSi three months before the Lord Chancellor and Secretary of State’s announcement is anyone’s guess.

Curiously, the glossy JSi brochure also happens to use exactly the same distinctive “legal disclaimer” language as the glossy brochures of PricewaterhouseCoopers.

Is PricewaterhouseCoopers involved with JSi?  I put this to PricewaterhouseCoopers and they refused to comment citing “client confidentiality” (which at least perhaps suggests my request related to a client matter). Why “client confidentiality” would stop PricewaterhouseCoopers commenting now when they were happy to discuss the commercial opportunities on its own blog in 2013 is unknown. I do hope that blogpost was not a breach of client confidentiality and that it was signed-off by the MoJ.

For its part, MoJ denied that there are “currently” any private sector organisations/consultancies involved in the JSi project.

 

Other than the PricewaterhouseCoopers blogpost and Grayling’s announcement (both of 2013) there is then little public trace of JSi before the proposed Saudi deal.  I asked the MoJ what official documents have mentioned JSi before the proposed Saudi deal emerged.  Initially the MoJ refused to answer this question (along with many others).

I was then told JSi is referred to (though not named) in the UKTI Security Exports Strategy of 2014.  And indeed it is: page 25 of the document shows that the UK government intends to tout “offender management services” around the globe as a “security export”.

It is a remarkable read: the selling of offender management and other-prison-related services is set firmly in the context of national security and intelligence.  Selling such services is not thereby a MoJ frolic; it is part of a wider and coordinated government policy.

 

The MoU

On 11 September 2014, the Lord Chancellor and Secretary of State signed a MoU with his Saudi counterpart.  A photograph of the signing ceremony is in the tweet at the head of this post.  The tweet was posted by the UK embassy in Saudi Arabia.

The MoU regards judicial co-operation: in other words, how the respective legal systems of the UK (or just of England and Wales) and Saudi Arabia will work together.

In December 2014, in a report to Parliament, the MoJ said:

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.

I have already noted elsewhere that noted that judicial cooperation between Saudi Arabia and the UK already seemed quite good before the MoU, as the 2013 transfer of Prince Saud bin Abdulaziz bin Nasir Al Saud indicated.

So what does this MoU say?

We don’t know.

One would think that it would be a public document.  It was announced publicly by the UK embassy who even published a photograph of it being signed; and it was reported to Parliament with a description of how it will build on (and so make a difference to) the existing relationship.  And it would, presumably, contain information about how the two legal systems will interact in way different to how they have interacted before, and this could be crucially important to affected individuals and companies.  It is the very sort of document which should be in the public domain.

The MoJ are refusing to publish the MoU.  I asked the MoJ directly for a copy, and the response was:

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

This is a non-sequitur.  Of course it is a “shared” document: it is a memorandum of understanding signed by two parties – it is “shared” is in its very nature.  And the the fact it is a shared document – which will affect third parties with dealings with both legal systems – is why it should be in the public domain.

(I have put in a Freedom of Information request for the MoU.)

Judicial cooperation is something – like improving prisons – which is (usually) a Good Thing and one can nod-along with.  But given the Corner House case and other examples of where the Saudis have sought to exert illegitimate pressure on the UK legal system, the actual terms of any judicial cooperation between the UK and the Saudi state are clearly a matter for public concern.

 

The commercial proposal

In the same report to Parliament as the mention of the MoU is another passage describing the proposed commercial deal.

In a paragraph alongside one  saying how the UK will host a “Global Law Summit, a world-class international event to coincide with the 800th anniversary of Magna Carta” to “showcase the depth and adaptability of the UK legal system and will demonstrate the foundation that our rule of law has created for businesses to flourish” was this information:

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.

(This passage was first reported by David Hencke.  There is also mention of a proposed bid to another illiberal regime, Oman.)

There are a few things to note about the described proposal.

First, look at the dates: the commercial bid was made in August 2014, two months before the MoU was signed.  This means that the MoJ was simultaneously bidding for commercial work with the Saudi regime at the time it was finalising and entering into the MoU on judicial cooperation. (And remember neither NOMS nor JSi has any legal existence distinct from the MoJ –  they are simply labels.)

Second, the flow of cash will be from Saudi Arabia to the MoJ.  Most UK government contracts, of course, work the other way round – the government (though a complex legal process called “public procurement” usually buys in goods and services, rather than selling them to others.

Third, the amount of cash is £5.9 million.  This is nothing, of course, to the Saudis; but it is a significant amount to a department like the MoJ in a period of substantial cuts and strain on the legal aid system.  The money will be paid directly to MoJ and will not be accounted for separately.  In other words: things will depend on this much-needed money being paid. As the MoJ explained to me:

Any commercial work undertaken by NOMS falls within the overall NOMS budget. The aim is that it covers the costs of NOMS commercial and other international work and generates a surplus to invest in our own services.

If approved the bid will be fully funded by the client [ie, Saudi Arabia] Government, will not cost the British tax payer a single penny and will generate a surplus to be used to support our own services.

But fourth, the proposal is for “ a training needs analysis across all the learning and development programmes within the Saudi Arabian Prison Service” which is surely a Good Thing, which we can all nod-along with.  Why such an anaysis is worth £5.9 million, and why the civil servants diverted from their work in UK will be in any good position to conduct such an analysis of what is a significantly different punishment system, are questions which are not answered.

 

But there other concerns, raised by Amnesty International (quoted here):

Given the prevalence of torture in detention, given that prisoners may – like Raif Badawi – face a flogging, and given that dozens of prisoners each year are taken out of their cells and publicly beheaded, we need to know how this scheme is going to help improve the situation?

Beyond the usual aspirational language, can Chris Grayling demonstrate that Just Solutions international will actually be able to concretely improve detention practices in Saudi Arabia without becoming complicit in abuse?

For example, is JSi going to be challenging and seeking to prevent abuses when it comes across malpractice, and indeed what human rights safeguards and training are going to be built into any programme?

These are serious points.

After David Hencke’s report and my initial FT piece, the Lord Chancellor and Secretary of State was asked about the proposed deal on television and he said he was looking at the deal “carefully”.  This, of course, a deal which he put before Parliament in his department’s report in December 2014.

I posed thirteen questions for information and documents, all of which were refused with a blanket statement.  I was even told dismissively that the MoJ would “not provide a running commentary” – even though the requests for precise information and documents and not for “commentary” at all.

However, tenacity and escalation sometimes pays off, and late on Friday I was provided with further information.

Question: When is the proposal expected to be signed?

Our bid is under consideration and may not be successful. We do not know the timing of bid evaluation and decision making – this depends on the pace of the Saudi Procurement process.

Question: What was the answer to Amnesty’s questions? (Quoted above.)

We believe that by bringing our standards on issues such as human rights into international delivery we will improve detention practices.

We should recognise that our correctional services are well viewed by other Governments who also understand our approach to human rights.

When other countries approach us for assistance therefore they do so in full knowledge that we will only offer advice and support that complies with our own human rights standards.

We have already seen and challenged practice in other countries and have been instrumental in the change of practice in other countries.

Question: Why has the Secretary of State now said he is looking at the Saudi proposal carefully? What does this mean in practice?

All international activity considered by NOMS is subject to a careful assessment process and sign off by MoJ; FCO and our local Embassies.

This includes an assessment about whether our possible activity would improve human rights outcomes.

This process was completed prior to our bid to Saudi.

And interestingly, the MoJ added:

We would expect to repeat this process if the Saudi Government decided to offer NOMS the contract. In that case 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.

So it is not a done deal; and the Lord Chancellor and Secretary of State will consider “human rights outcomes” before signing any contract.

There was, of course, no good reason why any of this information could not have been provided to begin with.

I also asked the MoJ about the conflict of interest – the “Corner House” question. Was it open to the Lord Chancellor and Secretary of State to enter into a commercial relationship with a Saudi state which uses threats and coercion to disrupt and corrupt the domestic legal system?  How could the Lord Chancellor and Secretary of State be able to stand up to its new “client” if the Saudi state again issues threats which would affect the rule of law?

The response on that point:

A MoJ spokesperson said:
“The British Government’s position on human rights is a matter of public record and we regularly raise our human rights concerns with the Saudi Arabian authorities at the highest level.

“No aspect of our commercial relationships prevents us from speaking frankly and openly to them about these or other issues.”

So that’s alright then: a high-value commercial deal by which the MoJ will receive £5.9 million which will be used to fund other services, contained in a commercial proposal which it will not disclose but was made at the same time as the MoJ negotiated a MoU on judicial cooperation will not have any impact at all on the MoJ “speaking frankly and openly” to its “client”.

 

Conclusion: a conflict of interest

So, are any of the concerns articulated at the head of the post made out?

In respect of transparency, the simultaneous MoU and commercial bid are not in the public domain, and both of them should be, even if there was no question of a connection between the two.  Both are documents which, on their own terms, should be published in the public interest.

In respect of domestic policy, your view on whether this is a a good way of scarce MoJ resources to be used – especially in a period of substantial cuts – will ultimately be a value judgment.  And most people who follow the operation of the prison and probation services will legitimately wonder if the UK is in any position to market expertise abroad.

In respect of whether the proposal will improve the lot of those in the Saudi punishment system, your view will partly depend on whether you are satisfied by the the MoJ’s (eventual) responses to the questions posed by Amnesty International. And even if the assistance is a Good Thing, there is no reason why it should be offered by the UK on a “commercial” basis.

In respect of whether the proposal will give wrongful legitimacy to the barbaric Saudi punishment system will also ultimately be a value judgment.

However, in respect of the the concern as to whether the proposal creates a conflict of interest, the position is clear.

The MoJ, responsible for the legal system of England and Wales, is seeking a commercial relationship, by which it intends to make a surplus to be used for other services, with a foreign state which as the Corner House case alone documents coerces the legal system of England and Wales by illegitimate means at its disposal.

In these circumstances, it cannot be open to the Lord Chancellor and Secretary of State to enter into a commercial arrangement with the Saudi state.

Even if there was transparency, and even if this was (somehow) a good use of civil service resources which would benefit the lot of those in the Saudi punishment system, and even if there could be no doubt that MoJ will stand up to the Saudis when abuses occur – in other words, even if there was nothing else concerning about this proposed deal at all, it still should not go ahead because of the conflict of interest the deal will create.

The Lord Chancellor and Secretary of State for Justice cannot combine the duty to uphold the rule of law and protect the integrity of the domestic legal system at the same time as entering into a commercial deal with the Saudi state described in the Corner House case (and other cases).

 

In summary: whatever else is wrong about this deal, the Lord Chancellor and Secretary of State for Justice should not enter into a high-value and beneficial commercial relationship with a Saudi state which is well documented as using illegitimate force to disrupt the legal system of the UK.

Je suis Charlie: Orwell on the fear that extremists have of being laughed at

George Orwell in The Lion and the Unicorn:

“One rapid but fairly sure guide to the social atmosphere of a country is the parade-step of its army.

“A military parade is really a kind of ritual dance, something like a ballet, expressing a certain philosophy of life.

“The goose-step, for instance, is one of the most horrible sights in the world, far more terrifying than a dive-bomber.

“It is simply an affirmation of naked power; contained in it, quite consciously and intentionally, is the vision of a boot crashing down on a face.

“Its ugliness is part of its essence, for what it is saying is ‘Yes, I am ugly, and you daren’t laugh at me’, like the bully who makes faces at his victim.

“Why is the goose-step not used in England?

“There are, heaven knows, plenty of army officers who would be only too glad to introduce some such thing.

“It is not used because the people in the street would laugh.

“Beyond a certain point, military display is only possible in countries where the common people dare not laugh at the army.”

So: to adapt Orwell: extremism is only possible in countries where the people dare not laugh at extremism.

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(From a post originally posted here.)