Bishop Hill When is a contract not a contract?
Apr 14, 2011 Climate: CRU Climate: Russell This is a guest post by David Holland
At its simplest a contract is an agreement between two or more people that is enforceable at law. As I understand it there must be an offer, an acceptance, and what is called a “consideration”, usually money. Of course, what you do for a fee still has to be legal.
In 2010, I had requested the correspondence of Russell panel members Boulton and Clarke. Although Boulton was no longer an employee of the university he continued to use university facilities, including its email server. His correspondence should therefore have been disclosable under the Environmental Information Regulations. Clarke however, remained an employee and, as a subsequent FOI request revealed, his time was not contracted to UEA or to Russell, but to a separate legal person:
Sir Muir Russell Review Group, Box 18, 196 Rose Street, Edinburgh EH2 4AT
The reasons for this arrangement are not clear, but may well have something to do with an attempt to avoid complying with FOI legislation.
The contract terms under which Edinburgh University had supplied Clarke’s services, and to which Sir Muir had agreed, allowed it keep copies of all the “deliverables”. I had therefore been astonished to find, in November 2010, that the university had deleted all of the Russell Review correspondence of Professors Boulton and Clarke. This had been done at Sir Muir Russell’s instruction, just days after the review report was published in July, apparently without properly considering whether it was environmental information that it was under a duty to “possess and update” and make available to the public on request.
Meanwhile, I had also learnt that UEA paid a whopping £270,000 for the Russell Review. Hoping to better understand the shenanigans, I made a FOIA request to UEA on 22 December 2010:
Please provide me copies of the correspondence between the University and Sir Muir Russell that, in the view of the University, comprises the contractual basis under which Sir Muir and his team operated and under which the university was contractually obliged to pay the sums that you have disclosed of what, I assume, is taxpayers money.”
Attached to UEA’s FOIA response of 26 January 2011 was an email exchange between Professor Acton, UEA’s vice chancellor, and Sir Muir Russell. At 21:38 on 2 December 2009 Acton had emailed:
Dear Muir
Following up our conversation while you were in a taxi.
I attach a draft of the announcement we would propose making about you taking on the Independent Review. See what you think, including the efficacy of those final two sentences attributed to you, designed to bring home to the Press that you will immediately need peace and scoping time.
On the points you itemised:
1. Yes it is essential that you have a free hand to draw on the range of expertise you identify as necessary.
2. I think the independence of the Review will be strengthened by us giving you a free hand to recruit that additional expert input. If the names emerge as chosen by us, the whitewash charge could appear. A crisp announcement that you are conducting the Review with a free hand will, I think, underscore your control and independence.
3. Yes, we have very clear advice from a strong range of interests to organise an Independent Review along precisely these lines. # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # # #
4. Yes, the 19 February timescale could be tight. We propose to use the words 'by early spring', if that is agreeable. It would be excellent if it turns out you can manage by end-February.
5. Yes, that number of days' work sounds just the right sort of thing.
As I suggested in my email this morning, might I propose a fee a bit higher, £40k, to complete the report. Plus travel, accommodation and administrative support. We will cover fees charged for the additional expertise you need, and for such non-UEA administrative support as you require.
I believe news that you are taking charge of the Review will inspire the deep confidence required and give the Review unimpeachable authority and independence. Do let me know if there are any other nuances for adjustment. Were you content, the advice to me is that the ideal is for us to announce your name tomorrow, Thursday 3. The fact that UUK meets all day Friday 4 makes that timing particularly salient within the Sector.
With best wishes
Edward
Quite what was redacted from Acton’s response to point 3, and why, is not clear. UEA claim that it is simply email addresses and phone numbers, which seems most unlikely considering the remaining text. I have issued a complaint to the Information Commissioner about UEA’s refusal to disclose this information.
Sir Muir replied at 00:11 on 3 December 2009:
Edward
Thanks. I am happy to sign up on this basis.
I attach a version of the draft press notice with some comments - I would be content for it to go out tomorrow as you wish.
If you need a short biog, this is attached.
Please send me final versions of what goes into the public domain.
Muir
In my experience the email exchanges above and the passing of money would be evidence for a common law contract. I believe Sir Muir was a contractor to UEA just the same as if he had agreed to decorate the vice chancellor’s office. So I was a little surprised to read in the letter that accompanied UEA’s response to my request:
The University does not consider that there was a contractual relationship with Sir Muir Russell or the inquiry team; it was by way of a public appointment (as is commonplace in these circumstances). Therefore, there is no information that comprises a ‘contractual basis’ between the University and Sir Muir Russell.
Nonetheless, it may be helpful to you in understanding the terms on which the appointment was made if we refer you to and attach the agreed terms of reference and certain email correspondence between Professor Acton and Sir Muir.
There is no mention in the email exchange of a public appointment which is usually an appointment to the board or management committee of a public body, either as a member or the chairperson. Such appointments are supposed to openly advertised and appointments made on merit in accordance with written procedures.
Why should UEA want to say it was a public appointment? I think the reason is as follows: if Russell was a contractor to UEA, then according to the Environmental Information Regulations 2004, all the documents in Sir Muir’s possession would actually be “held” by UEA. Finding a way around this problem may be where some of the £22,000 of legal fees expended by the Russell Review went. UEA and its lawyers seem to think they have found a loophole by which public authorities can hive off environmental information they would rather not have the public see – make a “public appointment” instead of taking on a contractor.
In order to probe this position, on 24 February 2011 I next asked UEA for all the Russell Review correspondence and yesterday I received their final refusal.
As you are aware (from our response to FOI 10-144) there is and was no contractual relationship between Sir Muir Russell/ICCER and the University. In addition to the material noted above, I have also considered legal Counsel’s opinion which has informed the University’s view in this matter and see no reason to overturn the University’s original ruling in this regard. Therefore, since the University maintains there is no contractual relationship, it follows that the University is unable to mandate the release of information held by ICCER. The University has no control over, nor access to, material held by ICCER, other than what is already in the public domain on the ICCER website.
Who has control over the material held by Russell is now up to the Information Commissioner, who must decide if the working papers are environmental information held on behalf of the UEA.
Reader Comments (67)
They wouldn't go to this trouble and expense if they didn't have something to hide. So much for an independent inquiry. Guilty or not guilty? You decide.
Experience with "climate science" (sic) teaches us to assume the worst. UEA's blatant contempt of law, its manifest institutional dishonesty, is no longer subject to debate. Muir Russell et al. get away with this because their conniving Green Gang has very substantial interests in subverting all due process.
Strange, I thought that the UEA welcomed the Russell inquiry report which said: 'Compliance with FoIA/EIR is the responsibility of UEA faculty leadership and ultimately the Vice-Chancellor. Where there is an organisation and documented system in place to handle information requests, this needs to be owned, supported and reinforced by University leadership.'
I suppose that this means that either the UEA does not accept the findings of the Russell inquiry or that the UEA Vice-Chancellor will be resigning.
"Yes, we have very clear advice from a strong range of interests to organise an Independent Review along precisely these lines."
Is it that UEA do not want the public to know who else had a finger in the pie? Curiouser and curiouser.
It was no doubt the best defensive scheme they could manage but it looks paper-thin to me. The ICO could and should dismantle it. Very well done David for uncovering all this.
Legal? Not necessarily.
"Would you be interested..."
"In a payoff to keep my mouth shut? I'd be fascinated. I'd even sign a contract, provided it states what we're hiding."
For the record
http://www.direct.gov.uk/en/Governmentcitizensandrights/UKgovernment/UKpublicappointments/index.htm
oops pressed create instead of preview
Commissioner for Public Appointments
There is an independent Commissioner for Public Appointments who regulates, reports on and monitors public appointments processes. She ensures that appointments are made on merit and that care is taken, at every stage, not to discriminate on any grounds.
The Commissioner also provides advice and guidance on the public appointments process.
Visit the website of the Commissioner for Public Appointments to find out more.
http://www.publicappointmentscommissioner.org/
Anoneumouse, I was going to mention that. The government say:
Now Google "public appointment" site:uea.ac.uk and see how many public appointments UEA has made and what it procedures are.
'...a separate legal person: Sir Muir Russell Review Group'
I wonder in what sense the SMRRG is a legal entity? It's obviously not an individual. Is it a charity, a limited company, an LLP, what? Who were the parties to this contract? The University and ???, to provide Clarke's service? Clarke himself and ??? A bunch of people can't just band together, give themselves a name and claim legal personality.
As to 'public appointment', in what way does this differ from any other job appointment? There were duties, fees and expenses. Looks likely (to me, at any rate, though IANAL) that there must have been a contractual relationship despite what they now say.
A cynic might well find themselves wondering if the fix wasn't already in even before the Review began.
The question now arises........Oxburgh, a 'public appointment' or contract?
and
so can someone explain how long UEA expect the information requested to be shielded?
If the whole structure of this inquiry has been an attempt to shield information from public view, then I hope someone ends up going to jail.
matthu
'...then I hope someone ends up going to jail'.
If that is the case, I'd like to see most of them end up in jail.
The correspondence has a strong flavour of workng together to *make it appear* that the review is independent, but not on ensuring the reality of that independence.
Far too chummy to be convincing that it was envisaged by either party as anything other than a pre-determined whitewash.
Self employed people work for others under a contract for services. Employed people work under an employment contract. Muir Russell was presumably engaged under a contract for services, the details of which are apparently being discussed in the post above. Is there a difference in the application of FOIA and EIR legislation depending on which type of contract applies? The grounds for refusing the FOIA request seem odd to me. Would Mr Holland be good enough to clarify the point for me if he can? Thanks
With view to above, if I were Edward Acton, I would be reflecting on the undertaking I signed on behalf of the UEA with the information Commissioner and would be looking to take my legal representative to court.
"I am happy to sign up on this basis."
For forty thousand quid? Me too, boyo. Just show me the crooked line and the dotted academics.
A. "I propose a fee a bit higher, £40k, to complete the report."
R. "I am happy to sign up on this basis."
Sounds like a contract to me...
Avoiding FOIA seems to be the new college sport on both sides of the pond:
http://www.c-ville.com/index.php?cat=1991704080566501&act=post&pid=12031404114589889
Holy sh*t - it gets worse, doesn't it..?
Its sounds like the lawyers worked out a mechanism that might be difficult to pierce. First, it looks like the contract was not with Muir Russell but with the Sir Muir Russell Review Group which is likely a corporation of some sort. The SMRRG then probably paid Sir Muir a salary. Sir Muir himself, was named to lead the inquirey as a public appointment.
They say "The University does not consider that there was a contractual relationship with Sir Muir Russell or the inquiry team". This seems correct to me. The contractual relationship was with SMRRG. For completeness, you might want to assert that SMRRG was a contractor of UEA and therefore subject to FOIA and re-write your FOIA asing for the documents held by SMRRG.
Also, "As I suggested in my email this morning, might I propose a fee a bit higher, £40k, to complete the report" -- this is very strange. It sounds like Acton is offering Russell more money than he asked for.
mpaul
'Sir Muir Russell Review Group which is likely a corporation of some sort'
There is nothing listed at Companies House under that name. As I said, a group of individuals can't simply band together, give themselves a title and assume a legal personality, which is what they would have to have to enter into a contract.
'you might want to assert that SMRRG was a contractor of UEA '
I can't see (atm, anyway) how SMRRG could enter into a contract at all.
As the OP and other commenters have noted, this arrangement has all the appearances of a contract* for service between UEA and Sir Muir Russell, with UEA picking up the tab for the "additional expertise" and "administrative support":
There is no trace of a "Sir Muir Russell Review Group" on the Companies House website, so it wasn't a limited company.
It would be instructive to find out who or what the UEA payments were made to.
* consideration is not a contract prerequisite in Scots law, Irrelevant but informative I hope!
Regardless the FOI is a legal obligation on persons or organisation in the UK , not something you can just ignore . Lets hope given UEA past behaviour on this front on its attempts to avoid FOI that the information commissioner comes down hard .
But once again weare shown they have changed nothing when it comes to their poor behaviour at CRU , with even the problems the awful reviews ‘uncovered’ being ignored by them.
Isn't an appointment just one species of the vast array of contractual relationships?
I wonder how this works in terms of procurement law? Isn't there supposed to be some kind of tender for services?
Muir,
I want you to investigate me in an inquiry. Here's some money and what I want you to say.
It's quite simple.
mpaul:
I first read it that way as well, which as you say, sounds strange. Upon further reflection, I considered that it might have been that Acton originally proposed a smaller figure -- say £20k -- which Russell thought to be inadequate. Acton's email "this morning" might have indicated there was some flexibility in this regard, and perhaps in a subsequent phone call (the "taxi conversation") they agreed the £40k figure.
So, going back to the original post, Acton's letter is exactly what one would put down on paper after an oral negotiation, to have a clear record of the agreements on compensation/expenses, review scope and schedule, and the formal independence of the committee from UEA personnel. I agree that such constitutes a contract in the normal (non-legal) usage of the word.
It's pretty clear that UEA paid money for services rendered. There's clearly a contract here. The question is simply who is the contract with? UEA is stating that the contract is not with Sir Muir, the individual. UEA is also not being helpful in guiding David wrt who the contracting entity is. Perhaps a simple FOIA asking to whom the check was written would shed some light on this.
Now here's a way to make a quick quid. Set yourself up as a structural intermediary able to guarantee immunity from the application FOI law in contracts that would otherwise be normal. No, it's not money laundering. Yes, it's information laundering.
It is really quite extraordinary to read of the dodging and weaving. The more I read, the more I feel that there are some guys from the big end of town behind all this climate information manipulation, guys who stand to lose a bundle if AGW fails as a concept.
Is anyone able to provide concrete evidence that the BBC pension fund invested heavily in carbon schemes that would be of lower value if AGW failed?
Is anyone able to show similar investment by some of the monied heavies? One has to suspect newspaper owners/shareholders because of the peculiar ways the news can be reported. While there are rumours, do we collectively have anything irrefutable?
The angle in mind is one of conflict of interest. People with certain types of investments (say politicians and judges) have mechanisms for standing aside if they are personally involved in making public statements, policies, plans etc that are connected to those investments. As a hypothetical, was or is the Vice Chancellor a potential financial beneficiary if AGW and carbon schemes attached thereto, prosper? Is the SMRRG another such group?
If I was an investigative reporter in UK I'd be into this like a rat up a drain pipe.
I wonder if the 'Sir Muir Russell Review Group' paid corporation tax
Tax Evasion Hotline
Freephone 0800 788 887
A couple of alternative ways to approach the problem:
Accepting (for the moment) that it was a "public appointment" then enquire how and where the appointment was advertised, what qualifications were required, how many people responded and were interviewed and request a copy of the appointment letter.
In parallel, ask who or what Russell was representing in the negotiations revealed in the emails and the taxi conversation. And the governing law of the contract/agreement.
Who or what Russell was representing is probably contained in the redacted text?
Or more likely it related to one of the strong range of interests and the particular advice offered?
Geoff Sherrington,
Information laundering is a great image - a suitable subject for treatment by Josh, perhaps.
I don't think the payment of £40k implies a contract of any sort -- it sounds more like straight bribery.
Once again, the Team, and UEA in particular, provide the most damning indictment against themselves by way the standards and practices they consider sufficient to exonerate themselves in the matter of scientific misconduct.
Follow the money!
Wonder what the UEA procurement policies are, no contract, no purchase order, no competitive tender and increasing not decreasing the fee during negotiations (well not really negotiations)
http://www.uea.ac.uk/fin/purchasing/procpolicy
To quote from said policies
5. As the Accounting Officer for the University, the Vice Chancellor is responsible for all expenditure by the
University, including research grants. The authority to commit expenditure is delegated to Heads of
Spending Units who may then nominate Authorised Signatories to sign Purchase Orders on behalf of the
University.
and
Competitive Tendering
10. The University's policy is unequivocally in favour of competitive tender as the best means of achieving
value for money. However, the cost of tendering needs to be considered against the potential savings.
For this reason the following thresholds will apply:-
(a) Sealed bid tender procedures will apply to all purchases where the estimated value (excluding VAT)
is £20,000 or more;
(b) Quotes will be obtained in the case of purchases where the estimated value (excluding VAT) is
between £5,000 and £20,000.
11. In the case of purchases that exceed the EU Thresholds¹, the Spending Unit concerned shall liaise with
the Purchasing Office in sufficient time to ensure compliance with the EU Regulations.
Breath of Fresh Air:
The relevant EU Thresholds may also be relevant:
£156,442 for Suppliers & Services, £3,92m for Works w.e.f. 1.1.10
Do other people think this is a really peculiar term from the same policy?
It seems that Acton is complying to the very letter of the law here:
No member of the University ...shall seek to uphold and enhance the standing of the University by ...
Once again it is revealed that their contempt for us is total.
There can only be one logical reason for these obfuscating contortions and that is DIRTY DEEDS.*
Once this farce is played out to its end, precis the narrative and send it to Delingpole and Booker.
* (not done cheap!)
I've put in an FOI request for details of all payments made re the Oxburgh and Russell inquiries.
40K to pay off the person investigating you, not bad.
I really think 'The Telegraph', in the persons of Chris Booker and/or James Delingpole (on holiday I know) - should take a close look at this.
Seems that David Holland's FOI approaches have been batted away so far - but the above worthies might be able to bring greater weight to bear on the parties involved.
Pongs to high heaven to me...
Even a "public appointment" rests on a contract - the appointee is required to "serve" eg at least turn up for meetings, he receives a fee and expenses. This is based on an "offer" matched by an "acceptance", with the fee being the "consideration". Contract Law 101, as David Holland says. (A consideration may not be required under Scottish law - but English law would obtain here as the offeror is the UEA.
But in any case, this was not a "public appointment" in the normal sense - appointment to an on-going body. It was a one-off chunk of work.
If I design the new computer network for a university - that too is a chunk of work, time-limited. And no-one could say it is not performed under a contract between the university and me. (Or - between the university on bthe one side and me on the other side, co-opting whatever help I needed.
The University's arguments sound specious. And they do not say in terms that their Counsel has declared that all this is not a contract.
More power to your elbow, Mr Holland.
This is fascinating stuff, truly! If I was so inclined I would weep at the depravity of the Civil Service echelons & its associated trimmings! However, you have all clearly forgotten your epsioides of Yes Minister........"Never instigate a public inquiry unles you know the outcome beforehand!" :-))
I am not sure that FOI management is the overriding concern here. Clearly, if the inquiry had been properly set up, Russell would have been a public appointment, the appointment being made by an entity independent of the UEA such as a Minister or statutory agency in the tertiary education domain. That didn’t happen. Why? The UEA information release confirms that stakeholders were consulted privately. One assumes no one in authority wanted to be responsible for such an inquiry, for good reason given the aftermath. This left the UEA free to set up an inquiry into itself. In doing so, it would want to clothe such an inquiry with as much of the appearance of a public appointment as it could contrive. It must have taken legal advice on this point but such advice would be privileged. The only way to try and fill that gap, and get the measure of the UEA claim, is to buy your own legal advice and publish it.
On the question of Russell’s legal entity, I thought that he operates as a consultant: that is a business and needs to be quarantined from Russell the natural person for reasons of professional legal indemnity as well, no doubt, as tax considerations. If payments to Russell arising from the UEA inquiry work have been made to his consulting business, that might have a [small] bearing on whether he has status as a contractor or public official.
The AGW fanatics are committed to doing anything it takes to suppress inquiry into their works. I think it will turn out to be mostly corruption, with a wee bit of noble cause rationalization.
The extent of the gross incompetence is staggering. One's first inclination upon reading all this is to focus on the lack of integrity. And there is clearly a serious absence of integrity in this mess. But what strikes me after reflection is the incompetence. These people can't do anything properly. They can't even set up a simple whitewash without screwing it up.