The PPE scandal shines a light on the worrying future of UK procurement law

By Professor Albert Sanchez-Graells (University of Bristol Law School).

The National Audit Office’s Report on its ‘Investigation into government procurement during the COVID-19 pandemic’ found that the relaxation of the standard procurement rules to allow for extremely urgent acquisitions, mainly of PPE, resulted in alarmingly widespread levels of procedural impropriety in the award of up to £18bn in public contracts. Most notably, the NAO report revealed the existence of a ‘VIP procurement channel’ for those with political connections, which resulted in much higher chances of obtaining very lucrative contracts than for those retained under the ‘normal’ pool of potential suppliers. This adds to (and partly explains) earlier reports of very large PPE contracts awarded to companies with no proven track record in the PPE market.

Despite its generally cautious or even conciliatory tone, the picture that the NAO Report paints is simply the opposite of what the rules on procurement integrity demand; the award of massive contracts in these conditions raises all sorts of additional questions, including the ultimate destination of the very substantial profit margins resulting from some of these contracts. In normal times, the NAO report would have triggered several high-level resignations and, very likely, some additional investigations, including of potential criminal activity. However, current times are anything but normal and the impact of the NAO’s eye-watering conclusions can be expected to be mild, at best.

It should be stressed that the procedurally improper award of contracts is not the only troubling aspect of the PPE scandal. What is perhaps less widely known is that the NHS supply chain should have been able to deal with the need for additional PPE as part of the centralised acquisition system that has been in place since 2018. As part of a ‘New Operating Model’ for NHS procurement, the Department of Health and Social Care created an arm’s-length organisation (NHS Supply Chain) tasked with managing the sourcing, delivery and supply of healthcare products, services and food for NHS trusts and healthcare organisations across England and Wales. NHS Supply Chain not only was unable to scale up its existing framework agreements for the procurement of PPE, but was also overwhelmed and unable to act as a proactive market agent. This resulted both in the award of additional consultancy contracts to effectively create a parallel centralised PPE procurement system (at high cost) and the emergence of competition for scarce PPE sources within the NHS, as Trusts took it in their own hands to try to supply the PPE needed at the frontline.

The PPE scandal not only shows that the deactivation of procurement rules and their checks and balances was exploited in dubious ways (and chumocracy is perhaps the kindest label this can be given), but also that the institutional arrangements for centralised commercial procurement for the NHS failed in the face of the challenge. It would be too easy to write all of this off as a ‘freak event’ due to the unprecedented challenges of a pandemic. The PPE scandal not only shows the inadequacy of the governance of public spending in the context of the COVID-19 pandemic but, more worryingly, shines a light on the dangers of unregulated procurement in the face of the many challenges that are fast approaching, including Brexit and the climate emergency.

Indeed, in a recent article, I argue that the PPE scandal was not the unavoidable consequence of the pandemic and that the UK healthcare procurement system was in a particularly weak position to deal with it as a result of its previous excessive and inadequate centralisation; the inadequate oversight, mismanagement, and underfunding of the outsourced strategic stockpile; and the additional impacts of Brexit. This turned the implementation of ‘unregulated procurement’ for the extremely urgent purchase of PPE into a governance Hydra that ate NHS Supply Chain up and resulted in the implementation of expensive and largely inadequate stop gap management solutions, and the waste of significant resources in a desperate attempt to scramble PPE supplies. It also created a regulatory vacuum which facilitated the improper award of contracts in an opaque manner. Sadly, in light of the NAO Report, this seems to be a fair reflection of the sorry state of affairs of procurement governance in the UK, as evidenced by the COVID-19 ‘stress test’. Perhaps the better question is what this means for the future.

To my mind, the existential challenge of climate change should be put at the forefront of policy and legal analysis—together with the also existential challenge of the development of digital technologies and social media, which is closely intertwined with the climate emergency. From that perspective, it seems clear to me that, before too long, the ecological and social breakdown resulting from climate change will pose more and more urgent challenges to all governments. And public procurement will, once again, be an essential part of an adequate response. There are a few things that need to be done to prevent falling on the trap of ‘unregulated procurement’ on the basis that extreme urgent needs become the ‘new normal’. Without attempting to be exhaustive, I would advocate for the following.

First, the procurement capability of the public sector needs to be re-established, which will require insourcing currently outsourced functions and providing substantially more resources. Second, reliance on ‘strategic providers’ and management consultants needs to be severely cut back and the development of more varied and resilient supply chains needs to be actively promoted. Third, there is a clear need for more (and much better) contingency planning, which also needs to be properly resourced. Fourth, we need to reorient procurement to put sustainability at its core. Fifth, we need to harness the potential of digital technologies to achieve higher levels of sustainability and, more generally, to achieve the UN’s sustainable development goals. Sixth, we need to facilitate and support the emergence of transnational and global institutions and governance networks capable of coordinating domestic procurement efforts aimed at tackling cross-border and global challenges.

Of course, the practical obstacles are significant, and the obvious constraint is that all of this would require significant resources and sustained effort to implement and consolidate changes that are not easy fixes of what is, in effect, a rather dysfunctional complex system. However, I hope the COVID-19 story will serve as a cautionary tale. If we fail to fix the system, it will fail when put under significant stress. And the only thing that we should not doubt is that systemic stress is coming our way.

The above is based on the author’s article available here, to be published in D Cowan and Ann Mumford (eds.), Pandemic Legalities (Bristol University Press, Forthcoming).

A version of this blog post was first published in the LSE Politics and Policy blog

Arbitration agreements, governing law and contractual interpretation

by Dr Mark Campbell, University of Bristol Law School

 

This is currently a busy time for the UK Supreme Court when it comes to international commercial arbitration. The Court has recently handed down its judgment in Enka Insaat Ve Sanayi AS v OOO ‘Insurance Company Chubb’ (‘Enka v Chubb’).[1] That judgment followed an expedited appeal from a decision of the Court of Appeal in April 2020.[2] Added to that, there a judgment in Halliburton Co v Chubb Bermuda Insurance Ltd, an important case involving an attempt to remove an arbitrator in the context of non-disclosure.[3] There are also appeals pending in Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait)[4]  and General Dynamics United Kingdom Ltd v State of Libya.[5] (more…)

Who’s the Mummy (or Daddy… or Parent)? Trans parents: law, identity and birth registration in England and Wales

Liam Davis is a law PhD student at the University of Bristol. He tweets as @LiamJamesDavis.

With diverse formally formations increasing, it is arguable that the birth registration system is not fit for purpose because it is tethered to ‘traditional’ understandings of family life and cannot adequately account for ‘modern’ families. This post considers mismatches between law and identity within birth registration for trans parents.

This post is inspired by my article, “Deconstructing tradition: Trans reproduction and the need to reform birth registration in England and Wales”, published in the International Journal of Transgender Health. A limited amount of free copies are available direct from the publisher, here. Otherwise, you can request an Open Access copy through my university profile/emailing me, or by tweeting me.

Background

You would be forgiven for thinking that the term “male mother” is  an oxymoron, but this is the conclusion the Court of Appeal reached in R (McConnell) v The Registrar General for England and Wales [2020] EWCA Civ 559 regarding a trans man, Freddy McConnell, who gave birth and wanted to be registered as his child’s father (or parent) on the birth certificate. (more…)

Healthcare procurement and commissioning during Covid-19: reflections and (early) lessons – some thoughts after a very interesting webinar

By Prof Albert Sanchez-Graells, Professor of Economic Law and Member of the Centre for Health, Law, and Society (University of Bristol Law School)

On 30 September, the Centre for Health, Law, and Society had the honour of hosting an excellent panel of speakers for a webinar on ‘Healthcare procurement and commissioning during Covid-19: reflections and (early) lessons’. The speakers provided short presentations on a host of very complementary issues surrounding the reaction of NHS procurement and commissioning to the COVID-19 challenges. The ensuing discussion brought to light a number of general themes that are, by and large, aligned with the worries that others and I had expressed at the outset of the pandemic*, and a number of challenges that will shape the readjustment or reregulation of NHS procurement and commissioning in the medium and long term.

This blogpost initially provides some brief notes on the most salient points made by the speakers in their presentations, which do not aim to be exhaustive. It then goes on to offer my own reflections and views on what lessons can be extracted from the procurement and commissioning reaction to the first wave of Covid-19, which do not necessarily represent those of the panel of speakers. (more…)

Reflections on International Law and Social Change

By Dr Lee McConnell, Lecturer in Law (University of Bristol Law School)

In a recently published article, I draw together some thoughts on the relationship between international law and social change. While I can do no more than provide a flavour of some of the themes explored in the article, I hope these reflections are at least thought-provoking.

A brief glance at the preamble to the UN Charter, which commits to the promotion of ‘social progress and better standards of life in larger freedom’, is indicative of the unique way in which international law asserts its own inherently ‘progressive’ character.[1] Regardless of whether one shares this vision, a more modest connection between law and social change will be familiar to many. This is the idea that international law can be harnessed to advance a particular cause – that it is, in essence, an empty vessel that can be filled with progressive content. This assumption, often implicit but rarely articulated or confronted, is what my article seeks to address. (more…)

‘Less is More’ in Non-Financial Reporting Initiatives

By Dr. Georgina Tsagas, Senior Lecturer in Law (Brunel University) and Prof Charlotte Villiers, Professor of Company Law (University of Bristol Law School).

In our paper we shed light on why ‘Less is More’ in the Non-Financial Reporting landscape and explain how an effective decluttering of the non-financial reporting landscape can take place by focusing on improving and widening the scope of the application of the EU Non-Financial Reporting Directive.


What is the root cause of the problem at hand?

Knowing ‘the price of everything and the value of nothing’ is more than just a nice turn of phrase that Oscar Wilde had Lord Darlington quip in one of his plays. Projecting into the future, the phrase has spoken volumes on how modern society has drifted away from cultural values and has also highlighted society’s collective failure to place those values on a par with financial ones. Yet in the area of corporations’ non-financial reporting the problem remains that, although in the year 2020 we have reached a common ground on the fact that sustainability is a value worth preserving, there is no rate, no metric, no price nor cost attached to it, which arguably creates chaos for private and public actors alike. Not only do identified stakeholders face the negative consequences, but in both the short term and long term all actors involved and affected corporations, as well as society as a whole, will face the adverse effects of corporations’ unsustainable practices. The fact that sustainability cannot be accounted for in a consistent way is the essence of the problem. Assuming that the chaotic framework for non-financial reporting is part of the problem, we argue that fixing that framework must be part of the solution. (more…)

Edward Colston: Listing Controversy

By Prof Antonia Layard, Professor of Law (University of Bristol Law School)

The toppling of the statue of Edward Colston has made the front pages of newspapers all over the world. “Hooray!” read an email from an Australian friend the next morning, “I’ve just been enjoying reading and viewing the pushing of that vanity statue of a slave trader into Bristol waters and thought of you and my brief stay in Bristol. What a great moment in the history of your city. Took far too long but at last the day arrived”.

As many more now know, Edward Colston (1636-1721) was the son of a prosperous Bristol merchant who after an apprenticeship with the London Mercers’ Company in 1654, established a successful business in London, trading with Spain, Portugal, Italy, and Africa. In 1680 he became a shareholder in the Royal African Company, which had a monopoly on trade with Africa until 1688, after which it received fees from English traders. Colston took a leading role in the Company, serving on several committees, becoming deputy governor in 1689. The RAC is estimated to have transported around 84,000 African men, women and children, who had been traded as slaves in West Africa, to the Caribbean and the rest of the Americas, of whom 19,000 died on their journey. Thousands who arrived had the initials “RAC” branded on their chests. In 1863, Colston was both elected a free burgess of the city and became a member of the Society of Merchant Venturers, enabling him to trade out of Bristol before towards the end of his life becoming an MP for Bristol (1710-14), despite living in Mortlake in Surrey. (more…)

Records, bards and border raids: reflections on a fifteenth century dispute

By Prof Gwen Seabourne, Professor of Legal History (University of Bristol Law School)

Picture: Raglan Castle/Castell Rhaglan, base of William Herbert, by M.J. Seabourne

In what now seems like the very far-off pre-lockdown part of 2020, an article of mine was published, the culmination of a project I had been working on for two years or more, and had presented, at different stages in its development, to audiences at the International Medieval Congress in 2017 and the British Legal History Conference in 2019. Judging a Hereford hanging: Agnes Glover v. Walter Devereux, William Herbert and others (1457)[i] considered the events of a few days in the spring of 1456, when the English city of Hereford was taken over by a mixed Welsh and English force, led by notable men of south east Wales and Herefordshire. William Herbert and Walter Devereux, along with their kin and connections, the Vaughans. A member of the Vaughan family – Watkin Vaughan – had been killed in Hereford, slain with an arrow through the heart, as one record has it, and the Herbert-Devereux-Vaughan allies came to Hereford to seek justice or revenge for this outrage. They obliged local citizens to try and convict six Hereford men for the killing, then proceeded to hang them. Legal action followed, as Agnes Glover, the widow of one of the hanged Hereford men attempted to prosecute the main offenders. The case went on for some legal terms, but, in the end, there was a spate of pardoning, and nobody was punished in accordance with the full rigour of the law. (more…)

A perfect storm: Patients, psychiatrists and the pandemic

By Prof Judy Laing, Professor of Mental Health Law, Rights and Policy (University of Bristol Law School)

Mental Health Awareness week is an important time to reflect on how the Covid-19 pandemic is generating a global crisis in mental health. Earlier this month, the United Nations published a policy brief warning that:  ‘Although the Covid crisis is, in the first instance, a physical health crisis, is has the seeds of a major mental health crisis as well.

Stringent lockdown measures have increased social isolation, and for many, this is creating huge psychological distress. That is further impacted by the fear of infection, death and losing relatives and close friends to the virus. The state of the economy is creating additional anxiety and stress for those who have lost or are at risk of losing their income and livelihoods. Professor David Gunnell (a colleague at the University of Bristol who researches on suicide and self-harm) has highlighted with others in The Lancet  that the pandemic will ‘leave many people vulnerable to mental health problems and suicidal behaviour, and increased risks of suicide’. Taking action now to prevent the risk of suicide is therefore imperative. And the United Nations policy brief also urges national governments to take positive action to ensure widespread availability of mental health support, as well as building mental health services for the future to promote recovery from the pandemic. (more…)

Repatriating the forgotten children of ISIS fighters: A matter of urgency

By Dr Rumyana van Ark (TCM Asser Institute and International Centre for Counter-Terrorism at ICCT –The Hague), Dr Faith Gordon Lecturer in Criminology (Monash University) and Dr Devyani Prabhat, Reader in Law (University of Bristol Law School).

Children are often the hidden victims in adult-dominated conflicts. This appears to be particularly the case when citizens of other states travel to an area of on-going conflict in order to participate and/or support a side in the conflict. As evidence relating to foreign fighters supportive of ISIS demonstrates, the decisions of the parents have significantly affected the position of their children who either travelled with them or were born there.  Such children number in the many thousands. While the documented numbers are already high, commentators note that it is likely that these figures do not represent the full reality. The statistics may be omitting those children recently born in or currently residing in besieged, and almost impossible to access, areas.  These estimated figures are also unlikely to include those who have not had their births properly recorded, those of whom the authorities have lost track, and those who were unknown to the authorities in the first instance. (more…)