When is a contract not a contract?
Apr 14, 2011
Bishop Hill in 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


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:


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.


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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