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« Voodoo correlations | Main | Josh 94 »
Thursday
Apr142011

When is a contract not a contract?

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.

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Reader Comments (67)

Re the distinction between Russell (the natural person) and Russell (the consulting business)

That smells like exactly the kind of weasel-words-space that lets UEA wriggle off the hook.

If the payments were to Russell (the consulting business), that does open yet another interesting avenue to explore - a dreaded stealth-tax called IR35 that applies to many consultancy firms in the Information sector. Unless there is a clear Contract For Service, the Inland Revenue can call it Deemed Employment, and Russell (the natural person) has to pay tax on the income of Russell (the consulting business)

Apr 15, 2011 at 1:14 PM | Unregistered CommenterKeith MacDonald

How weasel words work their wicked way.

They lead with:
"there is and was no contractual relationship between Sir Muir Russell/ICCER and the University"
which wasn't what you asked, but having sneaked that in they can then state
"the University maintains there is no contractual relationship"
which could be understood to be no contract at all concerning the review, but when challenged they can claim that phrase only refers to their first statement above.

See, you guys are honest but if they're not you can't leave them any wriggle room. If you let them set any terms or if you use logical phrases which they can then claim to have interpreted differently they can then delay, evade or provide only part of what was requested.

I don't know what the constraints of an FOI request are, but I think these phrases leave some wriggle room:
"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"

If you request them to drill down to specific information they'll try to find a way to circumvent your intent. If you make a broader but less interpretive request you end up with more data, into which you have to then drill down. For example, and not a recommendation,

For the period from [date] to [date]:
Please provide me copies of all correspondence concerning the review.
Please provide me copies of all correspondence between the University and Sir Muir Russell, however he is addressed.
Please provide me copies of all information held concerning Sir Muir Russell, however he is addressed.
Please provide me copies of all correspondence concerning any payments related to the review.

Apr 15, 2011 at 1:34 PM | Unregistered CommenterDerekP

Sir Muir Russell Review Group' paid corporation tax

Anoneumouse and Keith MacDonald make important points with regard to how the £40K was handled for tax purposes. If the payment was to some 'body' other than Sir Muir in person, then as I understand things it would not simply be a case of him declaring £40K as income on his tax return. . There are also rules, are there not, concerning bodies to whom public bodies can make payments. If the UEA made payments to the 'Sir Muir Russell Review Group', then it should have satisfied itself - due diligence - that the 'Sir Muir Russell Review Group' was a legitimate entity before writing any cheques. So what was the legal and accounting status of the 'Sir Muir Russell Review Group' ?

Apr 15, 2011 at 2:17 PM | Unregistered CommenterDaveS

Oops - ignore first sentence of previous post..

Apr 15, 2011 at 2:19 PM | Unregistered CommenterDaveS

The UEA finance dept would only have made a payment on an authorised invoice, the invoice should have a PO number (which might just be 'R Muir') and also may give the payment details eg account number sort code and account name. Be interesting to see what the Bish FOI comes up with on payments, di they all go to Russell Muir or his 'Consultancy' or direct to the members and/or the hotels they used etc.

Apr 15, 2011 at 2:21 PM | Unregistered CommenterBreath of Fresh Air

Someone's missed the trick here. If Muir Russell was a public appointment, then the public position to which he was appointed is undoubtedly subject to EIR in its own right.

Apr 15, 2011 at 2:22 PM | Unregistered Commenterdave

What if Sir Muir Russell Review Group was appointed by another public body to review UEA? You would need to identify who appointed them.

Apr 15, 2011 at 2:28 PM | Unregistered Commentermatthu

Acton agreed to pay "travel accommodation and admin" plus the "additional expertise" -legal fees, etc, presumably, but was he really agreeing, without any specification at all, to elevate the final fees from Russell's £40K to £290 K? If there is no written record anywhere of a maximum allowable amount, in spite of the University's stated rules for expenditure, it seems extremely odd practice. Or is it usual in their circles to say - "spend what you like on this "independent" review of our conduct, we'll pay any amount you care to mention"?

Apr 15, 2011 at 3:34 PM | Unregistered CommenterMessenger

Shouldn't Her Majesty's Revenue and Customs be taking an interest in this..?

Apr 15, 2011 at 3:58 PM | Unregistered CommenterDavid

This is all very smelly. If I recall, didn't the UEA/CRU get off the hook with the ICO over previous FOIA requests because they had timed out?

Is it possible that the UEA VC is playing the same game again? Or does the clock start on the date of the first acceptable(/i> request?

Apr 15, 2011 at 4:14 PM | Unregistered CommenterSnotrocket

The image and credibility of universities and research institutions in the UK that is painted by officials employed at the university of East Anglia is becoming similar to 'mail order' pseudo-universities that offer very impressive degree certificates for the exchange of money.
The underhand stuff that David Holland has uncovered is almost beyond belief and the average citizen of the UK who has some pride in this country would be justifiably furious if this utterly scurrilous behaviour was public knowledge.
Where are the crusading investigative journalists from the UK's mainstream media?

Apr 15, 2011 at 5:32 PM | Unregistered CommenterAlexander K

Contract law in the Uk says a contract can be verbal.

Just this comment is enough for a contract to be legally in place between 2 parties (whoever the parties are)

Edward

Thanks. I am happy to sign up on this basis.

Apr 15, 2011 at 6:39 PM | Unregistered CommenterBreath of Fresh Air

Alexander K - the only crusading investigative journalists fighting on behalf of those who are right (us) appear to be Chris Booker and Dellers. Frankly, I'm astonished that the natural cynics of Fleet Street (as was) seem surprisingly reticient to take these people on...

Apr 15, 2011 at 6:53 PM | Unregistered CommenterDavid

I am no lawyer and my copy of Charlesworth`s Mercantile Law is very old but I would have concluded that the arrangement between Acton and Russell was what he called a simple contract. It would be wise to get a contract lawyers opinion on this.

Apr 15, 2011 at 7:31 PM | Unregistered Commenteroldtimer

When UEA entered into the actual contract with the other party (whomever that might be) they would have likely included a clause that said something like "this contract supersedes any and all prior understandings or agreements between the parties, their agents, representatives...". So the mere existence of these emails does not imply that these exists a currently enforceable contract between UEA and Sir Muir, the individual. I'm almost certain that there is an actual contract (not just a set of emails) and the first step must be to acertain who the parties to the contract are.

Apr 15, 2011 at 7:53 PM | Unregistered Commentermpaul

mpaul,

I had asked for the contract details. If there is more UEA has broken the law.

Apr 15, 2011 at 8:10 PM | Unregistered CommenterDavid Holland

David Holland, your actual FOIA is not included in the post, so I'm only going based on their response which you have included in the post. I'm noting that they are not saying that there is no contract. Instead they are saying "[t]herefore, there is no information that comprises a ‘contractual basis’ between the University and Sir Muir Russell." They might be using Clintonian precision when responding to you. Instead, they could have a contract with a different entity, and that different entity had the contract with Sir Muir. But, in my mind, if money changed hands, then there is a contract somewhere, it just might not be directly with Sir Muir, it could be through an intermediary. In which case, the response to you is correct in the full Clintonian sense.

Apr 15, 2011 at 10:58 PM | Unregistered Commentermpaul

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