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

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):

And here is what the online story looks like:

And the opinion piece:

(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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“Exclusive” – the Home Office has a MoU with Saudi Arabia about which it is keeping quiet.

In researching around the Ministry of Justice’s Memorandum of Understanding (MoU) with the Saudis, I came across a curious piece of information.

(ADD, 3rd October 2015: A “Memorandum of Understanding” is a formal agreement, but usually one that is not intended to be contractual binding.)

According to a 2015 Foreign and Commonwealth Office report, the Home Office signed a Memorandum of Understanding with the Saudi interior ministry in March 2014:

“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.”

The remarkable thing is that – other than this mention on the FCO website (and that is in an fairly obscure report) – there appears to be no public mention by the government at all of this document.

It may well be that the FCO mention is a fortuitous-sort-of-accident and that the MoU was never intended to be known about publicly.

But the MoU is an important document: the UK Home Office is formally assisting the police in one of the most repressive regimes in the world.

As this blog has previously set out: 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.”

That is the regime our Home Office is formally assisting.

But it seems the Home Office do not want you to know about the Memorandum of Understanding whatsoever; it is nowhere on the Home Office site, and so far as I can see, it is not mentioned anywhere else.

(If this is wrong, please add links in the Comments below.)

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I asked the Home Office press office about this MoU today, and their answers were as follows:

Q: Can you confirm whether the FCO statement is correct?

A: “The information on the FCO website is accurate.”

Q: Can you confirm whether the Home Office-Saudi MoU is still in force?

A: “The Home Office does have an MoU with the Kingdom of Saudi Arabia. The MoU remains in effect.”

 Q: Is it possible to get a general statement on the MoU?

A: “There is nothing to add regarding this MoU beyond the information already available on the Gov.uk website.”

On the last answer, I asked as a follow-on:

The third answer is ambiguous: is there information on the Gov.UK website on the MoU other than at that FCO link?  If so, may I have links to that publicly available information?

To which the response was:

A: “…just to be clear; I was referring to the information you have already highlighted.”

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So:

– there is a Memorandum of Understanding between the UK Home Office and Saudi Arabia;

– the Memorandum of Understanding covers serious matters;

– the Memorandum of Understanding means UK policing expertise is given so as to assist the police in a notoriously repressive regime; and

– the Memorandum of Understanding remains in force.

But left to the Home Office you would not even know it existed.

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The MoJ-Saudi Memorandum of Understanding – a timeline

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.

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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