Public procurement

The mass vaccination rollout seems to have been the only major success story in the UK government’s tackling of the coronavirus pandemic. If the Prime Minister is to take any credit for that, it must be on the basis that he chose the right people to do the job— something not necessarily demonstrated in relation to other projects in dealing with the pandemic — and in particular for his choice of Kate Bingham as chair of the UK vaccine taskforce. This was an appointment that attracted some criticism at the time because, as a venture capital fund manager married to a Tory MP (Jesse Norman, who is financial secretary to the Treasury) given the task without any formal public or competitive process, she seemed to be yet another beneficiary of the “cronyvirus” phenomenon. There was also carping about the amount of money spent on public relations in support of the development. (See, for example, in The Guardian, Kate Bingham: well-connected but under-fire UK vaccines chief.) What all this overlooks is that she seems to have been exceptionally well qualified to take on the task, and in doing so seems to have played a blinder.

Bingham completed her role and stepped down at the end of last year. On 30 December 2020 the first of the vaccines, the Oxford-AstraZeneca vaccine, was approved by the UK’s Medicines and Healthcare products Regulatory Agency (MHRA). Since then, the vaccine delivery process (under the control of Nadhim Zahawi, Parliamentary Under-Secretary of State for COVID-19 Vaccine Deployment) has been launched with exceptional success. Many aspects of the UK’s response to the pandemic have been described as “world beating”, but this is probably the only one (apart from the tragic death-rate) that could genuinely be so categorised. (See, for example, this editorial in the Financial Times, A grim accounting of the UK’s virus mishandling.)

Supporting the widespread delivery of the vaccine has been the early and ample procurement of supplies, from a spread of different suppliers, under contracts completed in expectation of success in trials not yet completed. In other words, like any good fund manager, Bingham (a) did not put all her eggs in one basket (investment-speak for diversifying your portfolio) and (b) made a shrewd bet (investment-speak for speculation) on one or more of the various vaccines under development ultimately proving effective. She explained her approach in an article in The Lancet, The UK Government’s Vaccine Taskforce: strategy for protecting the UK and the world. As for the public reaction to her appointment, it is well worth listening to this interview on Political Thinking with Nick Robinson on the BBC radio: The Kate Bingham one.

And for us lawyers it is perhaps also gratifying to learn that this success has been achieved by someone who turns out to be the daughter of Lord Bingham, one of the greatest judges and jurists of recent times.

A benefit of Bingham’s mastery of her brief and confidence in the success of vaccines still in development has been that the UK was in a position to sign contracts earlier than other countries with suppliers such as AstraZeneca, whose vaccine was developed with (another British success story) a research team from Oxford University. (Six suppliers were chosen, out of 240 developers, according to Bingham’s article in The Lancet.) It was some months later that the EU, managing its procurement collectively, was able to sign a deal with AZ, and in consequence has had to wait longer for supplies. This imbalance has led to friction with the EU when it became clear that the EU might face temporary shortages of the vaccine owing to a production problems at AZ’s Dutch and Belgian plants. The friction led to a threat, quickly withdrawn, by the EU to implement a provision in the Ireland/Northern Ireland Protocol to the EU Withdrawal Agreement. That provision, Article 16, was intended as a “safeguard” (to deal with serious economic, societal or environmental difficulties arising from the operation of the Protocol) which was in turn subject to other, procedural, safeguards (which were not followed), as David Allen Green explains in a post on his Law and Policy Blog, What is Article 16 of the Northern Irish Protocol — and what on Earth was the European Commission thinking?.

The EU appears to have decided to trigger Article 16 as a safeguard to protect its own supplies of vaccine by imposing restrictions on the movement of vaccine supplies manufactured within the EU to countries outside the EU, including Great Britain (via Northern Ireland). In the face of protests from both the UK and some EU member states, the EU withdrew and a proposed regulation, which appears to have been published, was quickly deleted.

The row was exacerbated by speculation as to what AZ may or may not have promised to the EU in the contract between them, which prompted the publication in redacted form of that contract. Discussion focused on the expression “best endeavours” and whether that imported a firm obligation on AZ to provide the contracted-for number of doses within the contracted-for timeframe, or only (as appears rather obviously to be the case) to use its best endeavours to do so. The contract and its much scrutinised clause are the subject of a second blog post by David Allen Green: What the AstraZeneca agreement actually says

The latest (at the time of writing) was that the EU had secured a further nine million Covid vaccine doses from AZ by the end of March, which is still less than they had wanted, but “a step forward” (in the words of EC Commission President Ursula von der Leyen). BBC, Covid: EU and AstraZeneca in ‘step forward’ on vaccines

The efficacy of vaccines continues to be doubted by many (as much as half the population of the USA according to one recent poll) but that in itself is nothing new. An article in the latest London Review of Books discusses the history of vaccination back to its scientific discovery and validation in the 18th century when controlled infections of cowpox were used to develop resistance to smallpox (the word “vaccination” comes from the Latin name for cowpox, Variolae vaccinae); and before that a form of inoculation (also known as variolation or ingrafting) whereby a small dose of actual smallpox pus from another sufferer was administered to engender resistance to the full-blown condition.

The latter had been a discovery of the poet and critic Lady Mary Wortley Montagu on a trip to Constantinople in 1717, where she observed the local practice and brought news of it back to London, where it was embraced, and monetised, by the medical profession. Then as now endorsement came from the top: in 1722 Caroline of Ansbach, then princess of Wales, secured permission from George I to have her children inoculated, which being safely done and witnessed encouraged the aristocracy and squirearchy in turn to embrace the practice. Then too, as now, there was objection both on religious grounds (that it belonged to God alone to inflict disease) and libertarian: “The liberty of doing wrong”, it was said in a Parliamentary debate on the subject, “was still left among the privileges of free-born Englishmen.”

See Steven Shapin, via LRB, A Pox on the Poor

The National Cyber Security Centre has issued the following threat warning:

“Cyber criminals are attempting to scam the public by taking advantage of the COVID-19 vaccine roll-out.

Action Fraud had received 57 reports regarding vaccine scams as of the 7th January and want to raise awareness. The scam comes in the form of email or SMS and uses the lure of being vaccinated by tricking victims into sharing personal and financial details — some of the scams even use forms that look very similar to those used by the NHS.”

It’s important to remember:

  • The vaccine is completely free of charge.
  • The NHS will never ask you for your bank account or card details.
  • The NHS will never ask you for your PIN or banking password.
  • The NHS will never arrive unannounced at your home to administer the vaccine.
  • The NHS will never ask you to prove your identity by sending copies of personal documents such as your passport, driving license, bills or pay slips.

“If you believe you have received a scam email regarding the vaccine, then you can report it directly to the NCSC using the Suspicious Email Reporting Service (SERS) by forwarding the email to report@phishing.gov.uk.

If you have received a suspicious text message then you can forward this to 7726. This free-of-charge service allows an investigation to take place and take action, if found to be malicious.

The NCSC has published advice on how to deal with suspicious phone calls, messages and emails.”

Protest

A group of activists have built a network of tunnels under the ground near Euston Station in London, in an attempt to halt work on the HS2 rail development. It is rather fantastic that they managed to do this without anyone apparently being aware of it, least of all the security personnel hired to protect the nearby development site. The land under which the tunnels have been built is Euston Square Gardens, which is to redeveloped as a taxi rank. The protestors say they are protecting ancient woodland threatened by the project.

Since their discovery, the protesters have reported deteriorating conditions in the tunnels, with shortage of oxygen, five internal tunnel collapses and an influx of liquid mud. However, they have resisted attempts by security staff to flush them out. The activists say HS2’s eviction techniques are putting their lives at risk while HS2 blames the protesters and the way the tunnel has been constructed for putting their own lives at risk.

The Guardian reports that the activists have now launched an emergency legal action against safety regulators. John Cooper QC, who is leading the legal action and has represented activists in other high-profile cases such as the protest outside St Paul’s Cathedral in the City, has asked to see the HSE documentation on risk assessment of the eviction. Earlier, another barrister advising them pro bono was arrested and fined under the coronavirus regulations while attempting to give advice and take instructions in the case:

The Court of Appeal have decided that a group of activists who broke into a restricted part of Stansted Airport and occupied a runway, in order to prevent the takeoff of an aeroplane carrying a number of deportees, should never have been prosecuted for an “extremely serious” terror-related offence under s.1(2)(b) of the Aviation and Maritime Security Act 1990 (“AMSA”): see R v Thacker [2021] EWCA Crim 97; [2021] WLR(D) 69.

In 2017 the 15 activists cut through the perimeter fence of the airport and surrounded a Boeing 767 at Stansted Airport which had been chartered by the Home Office for the purpose of deporting 60 individuals to Ghana, Nigeria, and Sierra Leone. They were initially charged with “aggravated trespass” contrary to s.68 Criminal Justice and Public Order Act 1994 (“CJPOA”). But some time later the CPS decided to charge them with the much more serious offence under the 1990 Act, which carries a maximum sentence of life imprisonment. On 10 December 2018, the appellants were convicted of the ASMA offence in the Crown Court at Chelmsford. But the Court of Appeal held that “the appellants should not have been prosecuted for the extremely serious offence… because their conduct did not satisfy the various elements of the offence”. “There was, in truth, no case to answer,” said the Lord Chief Justice, Lord Burnett of Maldon.

The decision to prosecute under legislation reserved for terror offences was denounced by human rights lawyers, campaign groups, and the United Nations Office of the High Commissioner for Human Rights, which urged the UK government to reconsider. Amnesty International described the prosecution itself as a ‘crushing blow for human rights in the UK’.

Further reading:

Financial services

Day Traders are the second class citizens of the investment world, insulted in the way “day boys” might be at a snooty traditional boys’ boarding school. Hedge funds, by the same token, are like senior members of some swanky school club, entitled to wear specially hideous waistcoats with impunity and to terrorise small boys who get in their way or fail to perform properly such menial tasks as toasting their crumpets at the fireside…. <looks up from Tom Brown’s School Days and blinks> Yes, well, where were we?

For more on the rather extraordinary story of how a bunch of small investors, stuck at home with their stimulus money and galvanised by a Reddit message board called r/WallStreetBets, frustrated the aims of hedge fund speculators by buying up stock in a failing retailer, GameStop, which the big hedge funds had been hoping to short, see this article on Hein Online: Can’t Stop, Won’t Stop Buying GameStop. It does raise questions (on both sides) about what constitutes improper “market manipulation”, and about how the various platforms which facilitate the relevant market transactions should regulate that activity. And, quite apart from that, about market ethics. The phrase “vulture capitalism” didn’t spring from nothing.

See also: Al Jazeera, GameStop and the rise of Reddit-fuelled day traders

Courts

From 1 February 2021, solicitors will be able to register for the professional users’ access scheme, already available for barristers, which permits enhanced access through security in courts and tribunals for registered holders with the appropriate scheme ID. This means they can enter court buildings without needing a routine security search on each visit. A QR code on members’ ID cards is scanned to enable entry without further security checks, other than random screenings. The scheme is currently rolled out at over 300 HMCTS sites.

The London Criminal Courts Solicitors’ Association (LCCSA) and Criminal Law Solicitors Association (CLSA) have become the latest legal professional organisations to sign up, following the Bar Council which has been part of the scheme since it launched in May 2019. Alongside this, HMCTS has announced that it is also delighted to welcome the Crown Prosecution Service (CPS) as a member organisation, demonstrating the continued broadening of the scheme to a wider cohort of professional court users.

Significantly, access to the LCCSA and CLSA registration portal is not restricted to their membership only, and all solicitors with a practising certificate are able to sign up via this route from today, a move that has been advanced by investment and support from the Law Society.

HMCTS has announced a pilot trial for the rapid testing of Covid-19 among court users at Manchester Civil Justice Centre (CJC). For the next four weeks, lateral flow tests will be offered to all people attending a case at Manchester CJC who are not showing any symptoms of coronavirus (COVID-19). The test will also be offered to all staff, judiciary, contractors and legal professionals who visit the site. It will not be a public testing facility.

Anxiety over the safety of courts has been mounting in recent weeks, despite measures taken such as plexiglass screens, mask wearing and social distancing. In addition, the government has been introducing some intensive testing programmes in particular localities (such as Woking, apparently) in order to trace and trap alleged variants of the coronavirus, including one from South Africa. Compulsory quarantine restrictions are being imposed, but only on travellers from a list of high-risk countries, rather than the blanket travel restrictions which have proved so successful in, eg, Australia and New Zealand.

See BBC: What are the UK travel rules and will I have to quarantine in a hotel?

Judicial review

The Ministry of Justice has confirmed to the Gazette that it has received the report of the Independent Review of Administrative Law, which was led by Lord Faulks QC (a former junior justice minister), and will respond in ‘due course’. Meanwhile Lord Faulks himself will be busy with his current role as chair of the Independent Press Standards Organisation (IPSO). (He does seem to be drawn to things that might not be as “independent” as they claim to be.)

The review was launched last July with terms of reference including the scope and availability of judicial review and whether it should be codified in statute. (See Weekly Notes, 5 October 2020.) In launching the review, the government was fulfilling an election manifesto pledge by the Conservative party, which is perhaps not as keen to conserve a process and remedy that often seem to be targeted on the government’s own conduct. In furtherance of the same pledge, the government has also launched a review of the Human Rights Act 1998.

Terrorism

In other government review news, the Home Office has announced that William Shawcross, formerly chair of the Charity Commission and Special Representative on UK victims of Qadhafi-sponsored IRA terrorism, has been appointed as the new Independent Reviewer of Prevent.

Prevent, which safeguards vulnerable people from being drawn into terrorism, is one of the 4 strands of the government’s counter-terrorism strategy, CONTEST. It deals with all forms of terrorism, including Islamist and far right terrorism, and does not focus on any one community. The independent review will consider the strategy and delivery of the Prevent programme, and will make recommendations for the future. The terms of reference will be published shortly.

In January 2019, the government announced the creation of the Independent Review of Prevent as part of the Counter-Terrorism and Border Security Act 2019. William Shawcross’ appointment follows the previous Independent Reviewer, Lord Carlile, stepping down in December 2019. It has therefore taken over a year to find his replacement.

The appointment has not been without controversy. The former Chief Crown Prosecutor for North-West England, Nazir Afzal, told Byline Times that the appointment appears to have been “rigged” by the Government. Afzal said that he himself seems to have been turned down for the Government-appointed position because Home Secretary Priti Patel had already made up her mind about appointing Shawcross to the role. Afzal had been encouraged to apply and told his appointment was still being considered at a time when, by way of a news leak, it transpired the government had already made up its mind to pick Shawcross. “I was strung along to give an impression of open selection”, said Afzal.

Other recent publications

Obiter J via Law and Lawyers sets the scene for an examination of the complex future relationship between UK domestic law and EU law. “It is rather like the mixing of colours on a watercolourist’s palette: intricate and difficult to analyse but nonetheless crucial.”

Vaccines have become so fashionable (see above) that they are now being called into metaphorical use to describe new regulatory institutions and regimes for digital platforms, as in this article by Sarah Hartmann on Inforrm’s blog (it originally appeared on the LSE Media Policy Project Blog).

Catherine Baksi continues her series on key historic cases with a discussion about the case of In re A (Children) (Conjoined Twins: Surgical Separation) [2000] EWCA Civ 254; [2001] Fam 147, which was also featured in the The ICLR Anniversary Edition marking 150 years since the founding of ICLR. Oh, and it was also co-opted for the plot of that book and film, The Children Act. However, unlike Ian McEwan’s fictional version, Baksi’s article considers the different judgments of Lord Justice Brooke and Lord Justice Walker as well as that of Lord Justice Ward in that case.

Matthew d’Ancona via Tortoise says Churchill, statues, “wokeness” etc “should not be priorities for Left or Right in an age of pandemic”.

His sensible article can be read as an antidote to the sort of tendentious ranting that those who place themselves in the anti-woke camp often seem to resort to, such as the article barrister Jon Holbrook contributed to The Critic after being forced to resign from his chambers because of what they described as his “offensive” tweeting: Cancelled by my barristers’ chambers over a Tweet. Given that he continues to tweet and can write for The Critic, and has said he will continue acting as a barrister, it’s hard to see in what sense he could have been “cancelled”.

The best response came from the person at whom his original, offensive tweet was aimed:

That’s rather more than I intended to say on this subject but I was impressed by Ruby’s maturity and magnanimity.

Dates and Deadlines

Inner Temple (via Zoom) — 15 February 2021 at 6:00 to 7:30 pm.

Professor Leslie Thomas QC (Master of the Bench): “What Does It Mean to Be Anti-Racist in a Profession Full of Privileged People?”

“In this lecture I will talk about how barristers can challenge institutionalised racism and work towards a genuinely anti-racist legal practice.”

Open to: Members of the four Inns (worth 1 QS point / 1 hr CPD). Details via Inner Temple.

Law Society (online) — 23 February 2021, 10:00–11:00

Jason Connolly, CEO of JMC Legal Recruitment and Sean Nicholson, Managing Director, will answer members’ questions about changing career direction, redundancies, how to progress your career in the legal field or any other burning career questions you may have in a live Q&A session.

Send the Law Society your questions prior to the event at GazetteJobs@lawsociety.org.uk

Exeter Law School (via Zoom)— 24 February 2021, 17:30–19:00 GMT

Baroness Hale of Richmond, DBE PC QC FBA, former President of the Supreme Court, will be speaking on “Family Law in a Crisis” as this year’s annual Family Law lecture, which combines the Butler-Sloss Family Law Exeter Student Lecture with the annual lecture of the GW4 Family Regulation and Society Research Network. This event is for invited University of Exeter staff and students, plus personally invited individuals. Details via Eventbrite.

And finally…

is from employment law barrister Jason Braier:

That’s it for this week. Thanks for reading, and thanks for all your tweets and links. Take care now.

This post was written by Paul Magrath, Head of Product Development and Online Content. It does not necessarily represent the opinions of ICLR as an organisation.

Featured image: Photo by Matthias Zomer from Pexels