Accountability – The Empty City

The purpose of processes and policies and law in government is not to make things better, but to stop things being even worse

5th May 2026

The real reason we need rules and procedures in public administration

It is a paradox that in the weeks and days before an election people tend to become less interested in law and policy. The focus instead turns to politics and personalities, and the soap opera of who is up and who is down, and who is in and who is out.

And in the days after the elections, those who could not predict the outcome will confidently assert that the result proved them right all along.

This is not really a politics blog, and it has no party-partisan preference. Indeed, the general view of the blog is that governments tend to be illiberal, regardless of which politicians take power, and that the politicians who affect to be liberal in opposition tend not to carry that liberalism over into office.

As the eminent jurists the Bonzo Dog Band aver, it can seem that no matter who you vote for the government always gets in.

But.

We have in popular opposition not only those parading their liberalism, but the illiberalism, and so voters have a choice between the possibility of liberalism (and likely disappointment) and the certainty of illiberalism (and likely despotism).

And so it is at times like that we should take more interest in the actual workings of government and now public administration works. We should watch how public administration is conducted with anxious scrutiny.

This is why, perhaps counter-intuitively, the whole Starmer-Mandelson-Robbins affair is important.

In respect of political drama, the matter may not be of lasting import: the media caravan has moved on, and the attention-spans of the easily bored have been exhausted. The Prime Minister is still in office and if he is to be deposed, then it will because of a further political drama and not the one which has just passed.

The importance of what happened is otherwise than of immediate political effect. It was instead in the rare insight we had into how ministers and officials actually do make decisions (or don’t make decisions). The sort of thing which is usually hidden from public view.

An excellent balanced and informed account of the matter has now been posted at the Substack of the estimable former civil servant Martin Stanley. That post is required reading for anybody with an interest in our government in action (or inaction).

What I can add from the perspective of a former central government lawyer is that the informal-formal inexact process and lack of process is not unusual in Whitehall. The only difference here is that a stone has been lifted and we get to see what was teeming underneath.

(Public administration is more about teems than teams.)

Sometimes one can fall into the error of thinking government and administration is about the neat, almost-Euclidean geometry of decision trees and straight lines on a grand plane of an organogram. No, it is often a mess, both at the time and when there has to be an account of it afterwards.

This is why one the purpose of processes and policies and public law is not so much to make things go well, but to help stop things being worse. For example, the law of public procurement is not really there to help public authorities to make good purchasing decisions, but to stop public authorities making worse purchasing decisions than they otherwise would do.

And this is the significance of the Starmer-Mandelson-Robbins affair: we got to see under the rock. From that we can take the wider understanding that this is how important decisions and indecisions are made more generally. And that, in turn, helps explain why we have such an accountability gap in the government of the United Kingdom.

There is a general disconnect between how ministers and officials take decisions and how those decisions are accounted for to parliament, and to the media and public.

Certain executive-minded pundits and activists want to reduce even further the role of processes and policies and public law in government – to get rid of impediments and barriers.

They think that will make public administration better and more effective, but it is more likely to make public administration even worse than it already is.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Making sense of the week which was

26th April 2026

What, if anything, is the constitutional and legal significance of the fall-out from the Starmer-Robbins matter?

From a political perspective this last week or so in the United Kingdom has certainly been exciting and dramatic.

As set out in the last post here, we have a Prime Minister making a succession of bad decisions, and blaming and sacking others for those decisions.

In particular, we have a Prime Minister who speaks often about process sacking a senior foreign office official without any process whatsoever.

And as I have described at Prospect, that sacking by a Prime Minister who demands of the civil service that things are ‘delivered’ was of an official who worked out a way of ‘delivering’ the appointment of an Ambassador which the Prime Minister, against cabinet secretary advice, had publicly announced prematurely.

This is all a fascinating political spectacle.

*
But.

So what?

What is the legal or constitutional significance of what has happened – and what is happening?

From a lega(isitc) perspective not much: the overall result of the vetting (as opposed to the personal information vetted) was probably legally open to Olly Robbins to share with the Prime Minister. But there was also no legal obligation on him to share that information either. We are dealing here with discretion and policy, not rules and obligations.

What Robbins did and did not do with the vetting assessment was probably neither lawful nor unlawful, for it was not a matter of law.

(There is, of course, an important legal point about the dismissal of Robbins – and it is difficult to imagine a stronger case for unfair dismissal in this sort of context.)

Constitutionally, there is an interesting point here about whether it was appropriate for a senior official charged with making this decision to not share the Cabinet Office vetting assessment with the Prime Minister.

Usually, the information about ambassadorial vetting stays with the head of the foreign office civil service, and one can see the point of that with career diplomats.

But when the appointment is external and essentially political and (publicly) directed by the Prime Minister then there is a good argument that the official should place the Prime Minister in the position they should be so as to be properly accountable to Parliament (and the public) for that decision. And there is a strong argument that, by omission, the Prime Minister should not be misled as the vetting exercise.

Yet, when one has an incurious Prime Minister, not asking the appropriate questions and who demands ‘delivery’ – of solutions, not problems – one can begin to see why what happened, happened.

(A follower of this blog messaged to say that Starmer always wanting ‘delivery’ to be both without impediments but also error-free, is about Starmer’s own ‘cake-ism’.)

Add the (fair) security concerns that sensitive information not have wider circulation that necessary, you can see why Robbins did what he did (and did not do), especially as Downing Street is leaky.

Indeed, the only actual security breach in all this is that the media and the public even know about the Ambassador’s vetting failure by means of a leak. For that information to be in the public domain in this manner indicates a serious security breach somewhere.

As the Prime Minister has now said at the despatch box both that the original decision was wrong and that his decision to sack Robbins was right, one could perhaps say that the constitutional aspect of this matter is being addressed.

He has accounted to Parliament, and he is still in office – and he has not and is not facing any vote of no confidence.

As I stated at the time at Prospect, the real constitutional importance in all this lays in the House of Commons vote earlier this year that the Prime Minister and Cabinet could not be trusted to make decisions about the the applicability of the ‘national security’ exemption to the release of the Mandelson appointment documents. Those decisions were instead to be made by a parliamentary committee.

For Parliament to decide not to trust the Prime Minister and Cabinet in this way on national security was, in any meaningful way, a vote of no confidence. For this blog, that was the point the Prime Minister ought to have resigned.

Now the Prime Minister is dealing with the direct and indirect consequences of that vote: the placing into the public domain of documents beyond his control – and the prior (perhaps tactical?) leaking of sensitive information in respect of the documents that may be disclosed.

This is an actual example of a Prime Minister who is in office, but not in power – at least in respect of the Mandelson papers.

There may be further disclosures in this news story which does not seem to be going away.

At some point a constitutional point may be taken, and a vote of no confidence is put forward. Alternatively, the Prime Minister may lose the confidence of his own cabinet and offer his own resignation (or plan for departure). Who knows.

But what is certain is that this matter shows how a Prime Minister can be held to account for a bad decision which they made – and for a bad decision for which they are now running out of other people to blame and sack.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Robbins Nest

22nd April 2026

Towards understanding an almighty mess

There was once a bad decision, and then there was a worse decision, and then there was an even worse decision.

The bad decision was, of course, the appointment by the Prime Minister to appoint Lord Mandelson as Ambassador to the United States. At the time few expressly objected and some saw merit in such a sui generis appointment to deal with a sui generis President – a Trump Whisperer. (Though we had a perfectly competent Ambassador in place who was good at that too.)

The worse decision was how the Prime Minister opted to react when information was published about Mandelson’s relationship with Epstein. He blamed Mandelson for lying, he blamed the civil servants for not telling him about a vetting exercise. He was “furious”. His chief of staff was sacked. He decided it was everybody’s fault, but his own.

And then there was the worst of the decisions, at least from the perspective of his overall credibility. He sacked Oliver Robbins, the head of the foreign office civil service. This has not only poisoned the civil service against a serving premier, but also Robbins’ evidence before a select committee persuasively shows that Robbins and the Foreign Office were simply seeking to find a way to implement a decision which the Prime Minister had prematurely announced (against civil service advice) and which Number 10 staff were pressing (bullying?) the Foreign Office to approve without delay.

The Prime Minister accepts there was a process in place which Robbins followed: that is why the process has been changed. But he sacked Robbins for following that process which he accepts was in place.

And now Robbins can explain, from the outside, what happened.

Had the Prime Minister just owned the original bad decision – which as this blog has previously stated was his own decision – instead of blaming and sacking others, then the second and third mistakes would not have been made.

One can only wonder what further mistakes are to come.

Once this blog has fully digested the Robbins evidence yesterday, there may be more to come on here, at least.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The decision of a Prime Minister

19 April 2026

Only one person decided to appoint Lord Mandelson

Once upon a time there was a ruler who made a bad decision.

All the courtiers and servants knew it was a bad decision, but they put into effect the bad decision, for the ruler had already made and proclaimed the decision.

And when it turned out to be a very bad decision indeed, those courtiers and servants were sacked by the now “furious” ruler.

When the current Prime Minister of the United Kingdom makes a bad decision it always seems that others must take the blame.

Of course, such shruggery is not unusual in politics: one does not usually become a Prime Minister by being the sort that resigns from jobs. That is not how one climbs what Disraeli called the greasy pole to Prime Ministerial office.

But when Keir Starmer appointed Lord Mandelson as ambassador to the United States (thereby sacking a perfectly capable ambassador), it was very much his decision.

A decision which only the Prime Minister could make.

View differ on the reason for the appointment. Perhaps the sui generis problem of President Trump needed a sui generis appointment of a “Trump-Whisperer”. Perhaps, as many political journalists aver, it was simply because it was believed by senior Labour politicians that Mandelson somehow deserved a job in return for something or other.

The reason, however, really does not matter: it was plain that the Prime Minister had made a decision, and it was a decision announced as soon as possible.

And this is the important thing: it was the decision of the Prime Minister.

Yet it is others who are having to resign: the ambassador, the chief of staff, and now the head official at the foreign office.

We do not have full information as to the vetting process (and it is itself a remarkable security failure that we all know as much about this vetting process as we do, if you think about it).

It may be there was some form of communication between the foreign office and Downing Street, even if deft or unspoken, or it may be that the foreign office did not pass on the results of the vetting process so to give effect to the Prime Minister had already and publicly decided.

In either case, the responsibility for the decision is with the Prime Minister.

But the Prime Minister does not want to take responsibility for his decision.

He will keep sacking other people instead – none of whom made the decision, and none of whom are accountable to parliament for the decision that only he made.

Whether the Prime Minister misled parliament or the world at large about what he knew is now bogged-down in a depressing game of semantics.

What will not happen, it seems, is that the Prime Minister will take actual responsibility for his bad decision to appoint Mandelson as ambassador: for that would mean it was wrong of him to sack his chief of staff and the senior official at the foreign office.

All this shows how important it was for the House of Commons to take the decisions on disclosure of papers related to Mandelson’s appointment out of the hands of the Prime Minister.

That vote by the House of Commons was of immense political and constitutional significance. Members of Parliament decided that the Prime Minister could not be trusted to apply “national security” in disclosure matters.

The consequences of that momentous vote are now becoming more and more obvious.

Either we have Prime Ministerial accountability or we do not.

This is not a situation where a minister is being asked to take responsibility for decisions by officials – the Crichel Down situation.

That wider doctrine of ministerial accountability was always unrealistic: a minister cannot possibly know or approve of every decision in their department.

This is about a Prime Minister taking responsibility for their own decision – a high-level decision which only a Prime Minister can take.

And whatever further details is still come out about the matter, it will always have been the Prime Minister’s decision to appoint Mandelson.

Once upon a time there was ruler who was “furious” at being expected to be a ruler.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The Mueller report was a turning-point where United States history failed to turn

24th March 2026

Hello and welcome to The Empty City blog, the new name of which is explained here.

The cynical reframing of the report by Trump’s administration worked in our low attention span age

The historian AJP Taylor once described the 1848 revolutions as a turning-point where German history failed to turn.

In the recent political and constitutional history of the United States there have been a few of these non-turning-points.

Most glaringly, one can point to those two failures by the Senate to convict the twice-impeached President Donald Trump.

But the death a few days ago of Robert Mueller reminds us of a particular media-political-constitutional non-turning-point: what happened and did not happen in 2019, when his report into on the investigation into Russian interference in the 2016 presidential election was published.

The content of the report was damning of in its details. On this see the useful and important post by former federal prosecutor Joyce Vance published today.

But as with all formal texts, we need to understand both the purpose of the text and its context.

It was a report, and nothing other than a report.

It was not an indictment, and still less a judicial determination.

And the report did the job of a report, leaving it to decision-makers to make decisions based on the report.

The evidence and findings in the report would speak for themselves.

But.

The evidence and findings in the report did not get to speak for themselves: they were drowned out.

The report was stymied on release by an effective and cynical countering operation involving the then attorney general William Barr and others.

The report had little chance in our low-attention-span age.

The report had 448 pages and no sound-bite summary.

In contrast, the Barr letter sent to Congress (mis)characterising the report and (mis)describing the content of the report was a mere 4 pages and was packed with quotable lines.

It was a sign of our times that the Barr letter got traction in politics and in the mainstream media and on social media and the throrough investigation set out in the report did not.

Trump even asserted that the report had cleared him.

But Trump’s response to Mueller’s death suggests that he never really believed that to be true.

Trump social media post saying “Robert Mueller just died. Good, I’m glad he’s dead. He can no longer hurt innocent people! President DONALD J. TRUMP”

“Robert Mueller just died. Good, I’m glad he’s dead. He can no longer hurt innocent people! President DONALD J. TRUMP”

If Trump genuinely believed he had been cleared by Mueller he really could not have posted that graceless response.

But he doesn’t, so he did.

In a way, the intensity of Trump’s response is a testament to Mueller’s diligent work on the report.

As is said on Christopher Wren’s tomb: si monumentum requiris, circumspice (if you seek a monument, look around).

If you want a monument to Mueller’s report look at Trump’s unpleasant response.

But what you don’t have as a monument was any adverse consequences for Trump.

Trump carried on as if the report never was published.

Trump was never held accountable for what was detailed in the report.

The Mueller report and the response to it was a turning-point where American history failed to turn.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Six Things Wrong About Public Procurement

25th February 2026

Public procurement, like constitutional law, should be boring.

It should be about the mundane everyday activity of public bodies purchasing things so that they can fulfil their public functions.

But it is currently exciting, and my pieces at the Financial Times and here on the Ministry of Defence contracts with Palantir were disconcertingly popular.

And do this seems as good a time as any to set out some more general concerns about public procurement – though those who follow my drivel on social media will be familiar with some of these points.

But as a preliminary remark: nothing which follows is disparaging about the greater number of those engaged in public procurement and contract management for public authorities whose professionalism keep things from being a lot worse. The public are lucky to have you.

The points below are generally about the faults of a system – and about how it benefits cynical contractors acting in their commercial self-interest and about how non-procurement officials and their political masters lack realism.

The points below are not about those that somehow stop greater abuses from happening.

The first point is about money.

Loads of money.

And as with the fog at the start of Bleak House, money everywhere.

Billions – not just millions.

If you can get a lucrative public services contract, you and your pension plan and your family are not just made for life, but also for generations.

Public procurement is an absolute geyser of cash.

And – this is the important thing – central and local government are good reliable payers.

There are hardly any defaults, and there are hardly any early terminations.

Many contracts just rollover, just like the public authorities that let them.

Public authorities suing on a contract is almost unheard of, more is the pity.

Sometimes a public authority will assert its contractual rights – and this will grab attention like any rare event – but mostly public authorities will keep funnelling the money to contractors.

And because central and local government are good reliable payers then the canny contractor can use the revenue stream effectively as security for other aspects of the business.

The returns on savings or an investment fund are nothing as the percentages a contractor will make on a public contract, especially if they then sub-contract the actual provision of goods, services or works at a discount to sub-contractors – who, in turn, are sometimes made up of the very same people who provided the same things for the public authority in-house before being out-sourced.

Some may complain (and no doubt will complain below) that the above is a horrible caricature: but in my experience there is enough truth in the depiction set out above for it to be offered as a concern on this blog.

And it gets worse.

The second point is the general lack of transparency.

Public procurement for no good reason whatsoever is shrouded in secrecy.

Routinely the facts about public procurement – that is when huge amounts of public money are spent on things (supposedly) so public functions can be discharged – are not disclosed to the, well, public.

And this is an attitude often at the highest levels of public authorities.

The magic phrase “commercial confidentiality” is constantly invoked, often by those who want you to nod-along with their mock-earnestness.

But “commercial confidentiality” in public procurement is utter balderdash and complete flapdoodle – at least after the contract has been let.

And this secrecy cloaks so may inefficiencies and abuses – on both sides of the transaction.

But those involved know that any attempts to force public disclosure of commercial information about these contracts can be avoided, at least in any timely way.

In principle – because of the amounts of public money involved and the need for public functions to be discharged, as well as because of pretty basic things like transparency and accountability – there should not be as a general rule “commercial confidentially” in public procurement.

The contractors get the benefit of huge amounts of cash, paid on a regular and reliable basis. They really should be happy with that.

And so the price of such contracts for the contractor should include full public transparency – unless there is a reason other than commercial confidentiality for non-disclosure.

The third point is that the law and practice of public procurement will often favour a small group of large providers – often with deliberately forgettable corporate names – who can afford the risk and the expense of participating in elaborate procurement exercises without guaranteed return.

Some procurement exercises with their multitude of stages and questionnaires and voluminous tender documents cost a small fortune for a bidder.

Public procurement should be about non-discrimination and avoiding bias, but – counterintuitively – the complex rules to give effect to such laudable aims have the practical effect of excluding almost all providers.

Like how profit and sustainability rules in football have the practical effect of favouring already established clubs – disclosure, Aston Villa fan here – the rules of public procurement have the effect of favouring a small group of established providers.

The fourth point is about the closeness of some (but not all) contractors and public authorities – with the famous “revolving doors”.

Those who let contracts really should not then work for the contractors to whom those contracts were let.

Even if the integrity of such individuals is beyond reproach, unbiased public procurement – like justice – not only needs to be done, it needs to be seen to be done.

The fifth point is a personal bugbear about contracts which involve informational technology and intellectual property (IT/IP).

There is a tendency by non-procurement officials in public authorities – and even their political masters – towards bespoke IT/IP development.

And this suits the contractor just fine – especially if the contractor retains the property rights and gets to charge for testing and ongoing management.

And so sometimes you end up with public authorities beholden to that contractor for the IT/IP development long after the term of the initial contract.

The public body is captured.

Of course, public authorities should use, where possible, commercially-off-the-shelf (COTS) products or open source software.

And if there is a need for proprietary bespoke software then there has to be robust exit management plans and licensing arrangements so that a public authority does not become dependent on one provider.

But it seems some non-procurement officials and their political masters like gleaming new things, with wish-lists of white-boarded specifications.

Aspire-ware, vapour-ware.

Public authorities should stick to COTS products or open source software where possible, and if there really – really, really – has to be an exception, then considerable thought needs to go into not only the terms of the contract, but also into the practical contract management and re-letting of the contract, so as to avoid capture by a supplier.

And now to the sixth point, the saddest point of all.

The only thing worse than having (often inflexible and elaborate) public procurement rules is having no public procurement rules at all.

The recent experiences of Covid and the abuses of PPE show what happens when the rules are suspended and an anything goes approach is adopted.

The sheer amounts of cash at stake mean that corruption is pretty-much inevitable.

Ideally one would have disinterested public authorities picking-and-choosing the right supplier without the fuss of public procurement rules; but instead of picking-and-choosing you will get pick-pocketing, and at a vast scale.

As some Victorian statesman once said, not all problems have solutions.

And in conclusion: we are fortunate that because of the professionalism of many procurement officers and contract managers within public authorities that things are not a lot worse.

But non-procurement officials and their political masters really need to get a grip on what is going on.

For contractors, acting cynically in their own commercial self-interest, know exactly what is going on.

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Land and Expand – how Palantir captured the Ministry of Defence

23rd February 2026

What a close reading of public domain documents tells us about two concerning contract awards

Over at the Financial Times at the weekend I had an “op-ed” column on how Palantir commercially captured the United Kingdom’s Ministry of Defence. That column was popular and widely shared.

The post below now unpacks the detail of that column – to show the “working-out” behind what was summarised at the Financial Times .

As a preliminary point, I do not have any strong opinions or detailed knowledge about Palantir as a company or about individuals connected with that company.

This post, like the Financial Times column, comes at the subject from a different direction.

In essence: what would a cold, close reading of the relevant public domain documents tell us?

Would those documents, in and of themselves, give rise to concerns about the contracts awarded by the Ministry of Defence to Palantir?

In adopting this approach, I am drawing on over twenty years of experience advising on and watching public procurement – and I happen to be a former central government lawyer dealing with public procurement matters (especially IT procurements).

What follows is my opinion based on the information available.

The concerns I express are about how the Ministry of Defence dealt with these procurements. In respect of Palantir, their land-and-expand approach is nothing other than what any rational if cynical economic agent would do when faced with the lucrative opportunities presented to it by Ministry of Defence. They appear to have done what they could get away with and perfectly lawfully.

In essence: Palantir commercially colonised the Ministry of Defence because the Ministry of Defence let them.

*
Let us start with the words of that eminent public procurement professional J. Arthur Prufrock:

“[…] And time yet for a hundred indecisions,
And for a hundred visions and revisions […]”

A public procurement exercise is a sequence of decisions (and indecisions), of (in a way) visions, and (often) of revisions.

Accordingly we have to re-create and trace what decisions (and indecisions) were made, and when, and by who.

The primary objective of any public procurement exercise is the letting (for that be the verb) of a contract – for goods and/or services, and even for grand works projects.

A public procurement exercise also should have regard to what happens after the contract is let – contract management and such like – and to the likely need for the contract to be re-let after a period of time.

What distinguishes public (sector) procurement from private (sector) procurement is that there are certain principles and procedures that a public body should follow when acting as a contracting authority.

In broad terms, the principles are those of transparency and equal treatment, and of the need for competitive tendering when possible. There should also not be any bias towards incumbents.

These broad principles are in turn enshrined (ho ho) in detailed procedures that are set out in legal codes. The current legal regime is primarily provided by the Procurement Act 2023 which replaced other laws, such as the Public Contracts Regulations 2015.

(The law and practice of public procurement rightly has many critics – and there is much criticism of the way it favours large bidders who can afford to go through the expensive and sometimes elaborate procurement processes, and also of its general inflexibility – but as the Covid experience showed us, the only thing worse than having rules of public procurement is not having rules of public procurement.)

Now let us look at these two Ministry of Defence contracts.

The Ministry of Defence let a contract to Palantir in 2022 and then again in 2025.

The formal notice for the 2022 contract award is here and the formal “transparency” notice for the 2025 contract award is here.

We will look at what the 2022 contract award notice (and published contract) tells us, and then we shall consider what should have happened next, and then we shall look at 2025 award transparency notice tells us. Regard will also be had to this this parliamentary debate of 10 February 2026 and to various press releases.

The 2022 Ministry of Defence contract award to Palantir

The notice tells us the following basic information about the award: it was for a three-year contract for “software package and information systems” to start in 2022, and the value of that contract was £75,215,711.11.

The date of the notice tells us that it was before the current Procurement Act was in force – and it it seems that the Public Contact Regulations 2015 were followed (though there were also special defence procurement regulations).

The notice also tells us this:

Procedure type Negotiated procedure without prior publication (above threshold) What is a negotiated procedure without prior publication (above threshold)? The opportunity was not advertised, because for example only one supplier is capable of delivering the requirement, or due to extreme urgency brought about by unforeseen events. This procedure can be used for procurements above the relevant contract value threshold.

This passage tells us the following:

the contract was not advertised (“…without prior publication”);
it was a direct award;
such direct awards usually are because of urgency or that only one supplier is capable of delivering the requirement.

Now we need to look at the (then) applicable law (assuming that is the 2015 regulations).

The starting point is that there should have been a competitive tender unless an exception applied.

The relevant threshold at that time appears to have been £138,760 (well below the £75,215,711.11 value of this contract.)

So what exception?

Under regulation 32, “[i]n the specific cases and circumstances laid down in this regulation, contracting authorities may award public contracts by a negotiated procedure without prior publication”.

Those cases are circumstances are:

where no tenders, no suitable tenders, no requests to participate or no suitable requests to participate have been submitted in response to an open procedure or a restricted procedure – and we can assume this was not the case;
where the works, supplies or services can be supplied only by a particular economic operator for any of the following reasons:—

(i) the aim of the procurement is the creation or acquisition of a unique work of art or artistic performance,

(ii) competition is absent for technical reasons,

(iii) the protection of exclusive rights, including intellectual property rights,

but only, in the case of paragraphs (ii) and (iii), where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement; and

insofar as is strictly necessary where, for reasons of extreme urgency brought about by events unforeseeable by the contracting authority, the time limits for the open or rest – and we can assume this also was not the case.

So we can assume it is the middle bullet-point condition.

We can also assume that the software package was not “a unique work of art or artistic performance”.

So it must be [ii] or [iii] of the middle bullet-point condition.

Given the procurement was the proprietary software then we can assume it was [iii] – though legally it would be the same if it had been [ii].

Therefore, if it was [ii] or [iii] the law then provides it there can only be such a direct award “where no reasonable alternative or substitute exists and the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement”.

Now turning back to the 2022 procurement exercise, and following Prufrock, what decisions and indecisions had to have been taken by the Ministry of Defence at this point for there to have been a contract ward without publication?

First, there would (or should) have been an output-based specification prepared within the Ministry of Defence. Normally this would be set out in neutral terms in a discrete specification department. Setting out what is required in terms of outputs would avoid supplier or product bias. There would (or should) have also been a business case.

Second, there would (or should) have been a decision by the Ministry of Defence that only one supplier was capable of meeting that (neutral) requirement – that “no reasonable alternative or substitute exists”. This decision (or should) have involved market sourcing and analysis. It would (or should) not have been assumed that there was no reasonable alternative or substitute exists without, well, reasoning – and that reasoning based on data. The Ministry of Defence would have to be persuaded that there was no alternative.

Third, the Ministry of Defence would have been mindful that “the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement”.

What should not happen is that from the beginning the objective was always just to contract with one supplier for their proprietary product, regardless of market research. This is not least that then there would not be any informed decision that “no reasonable alternative or substitute exists”.

As there was no advertisement published we will never know whether there was a reasonable alternative or substitute available for meeting any output-based specification.

At the time there was a press release from Palatir. The content of this press release would either have been agreed between the Ministry of Defence and Palantir or at least would have been known to the Minsitry of Defence.

The press release quoted an official from the Ministry of Defence:

“Palantir’s Enterprise Agreement with the MOD will accelerate the UK Armed Forces’ journey to become a truly integrated force. We’re proud to expand our long-standing relationship with the MOD through our partnership with Defence Digital, and look forward to delivering world-leading software capabilities to enable greater operational outcomes.”

That press release described the software package as follows (emphasis added):

“Worth £75 million over three years, the partnership will support the MOD’s digital transformation as it becomes a world-leading agile force of the future. Spearheaded by Defence Digital and powered by Palantir, the digital transformation will see the MOD treat data as a strategic asset, harnessing its power to deliver superior military advantage and greater efficiency across the enterprise, from headquarters to the front lines.

“This partnership aims to accelerate Defence Digital’s ambitious vision of where the UK needs to be by 2030, providing secure access to its data across all operational domains, Top Level Budgets and UK Armed Forces bases.

“Working in close collaboration with Defence Digital, Palantir software will enable the MOD to exploit data at scale and speed to make faster, better decisions across Defence. Building on more than a decade of partnership, the agreement will enable any part of UK Defence to gain access to Palantir software across multiple classifications, wherever and however it can help – turning the MOD’s digital vision into reality at pace.

“Palantir builds leading digital platforms for data-driven operations and decision-making. By helping develop a data-backed representation of Defence assets, personnel and workstreams, Palantir software brings all the data that matters into a single view through a modeling concept known as an ‘ontology.’

“As disparate data sources are integrated into Palantir software, it digests the information, cleaning and harmonising the data and mapping it to an ontology. The ontology allows users to see data not as rows and columns but as objects, properties, and the relationships between them.

“With this sophisticated, intuitive data model in place, MOD personnel can perform advance scenario planning, testing hypotheses and modelling how they would play out in real-time. Whether for front-line operations, budget decisions or maintenance planning with industry partners, Palantir’s software gives the MOD the ability to understand outcomes before making decisions.”

What this press release tells is that even in 2022 the procurement was expressly seen by both the Ministry of Defence and Palantir as the beginning of a long-term project – “journey to become a truly integrated force” – that would take until at least 2030 – “this partnership aims to accelerate Defence Digital’s ambitious vision of where the UK needs to be by 2030” – in respect of something which would become absolutely critical for the Ministry of Defence.

Yet this “journey” to “where the UK needs to be by 2030” was to be on a three-year contract – starting in 2022 and ending in 2025.

So that placed the Ministry of Defence in a difficult situation.

Normally a contracting authority will make provision in the agreement for a contractor to be able to “exit” after the term of the agreement so that an alternative provider can be appointed. In this way a contracting authority does not get captured by a supplier to which the authority becomes beholden.

This is especially the case where there is bespoke development and/or proprietary software (or other intellectual property) on which a public authority can become dependent.

Otherwise the contracting authority becomes trapped into a contractual relationship, unable to appoint another provider.

And a trapped contracting authority then is at the mercy at whatever the contractor wants to charge for the next contract.

A contractor will have landed and expanded.

The curious incident of the Exit Management Plan

We have a version of the the contract signed in 2022. This is published by the government with its notice for the 2022 contract award.

And you will see in the table of contents that Schedule 17 has headed “Exit Management Plan”.

An Exit Management Plan ensures, among other things, that a contract can be effectively re-competed at the end of the term.

(The schedules, including Schedule 17, have not been published – though this is not unusual with published government contracts.)

There is no substantive clause in the main contract incorporating schedule 17 as a whole (Alan Hansen wince at poor drafting – it is probably in Schedule 1, which is also not published) but Schedule 17 is referred to clause 32A, which provides:

The Authority’s rights of use to Project Specific Intellectual Property and Contractor owned COTS software shall be licensed in accordance with Schedules 10, 15, 17 and 22 respectively.

(“COTS software” means Commercially Off The Shelf software – like Windows etc.)

“Project Specific Intellectual Property” is not defined in the main contract – again it is probably defined in the unpublished Schedule 1 – but we can assume it means the intellectual property of Palantir which the Ministry of Defence is paying for in respect of services under the contract.

If so, Palantir was under an obligation to license the software to the Ministry of Defence in the event of an exit from providing services to the Ministry of Defence.

As this was a three-year contract for a critical service, it would have been essential for the Ministry of Defence and Palantir to agree a practical, realistic and robust exit management plan under Schedule 17, including the rights of the Ministry of Defence to use the Palantir software in accordance with clause 32A during that exit.

We do not know whether there was an exit management plan under Schedule 17, as the schedules to this contract have not been published.

If there was an exit management plan under Schedule 17, we do not know how much serious and meaningful effort was put into formulating the plan for exit after three years, in view of the express “journey” to “where the UK needs to be by 2030”.

But.

What we do know, by inference, is that whatever exit management plan there was (if any) was not practical, realistic and robust enough for there to be a competition for the follow-on contract from 2025.

This was a severe public procurement failure, even if there was a case for not advertising the first contract.

The 2025 Ministry of Defence contract award to Palantir

The reason we know, by inference, that whatever exit management plan there was (if any) was not practical, realistic and robust enough for there to be a competition for the follow-on contract from 2025 is because of the 2025 contract award transparency notice (published in January 2026).

(The 2025 award was under the new Procurement Act 2023.)

This transparency notice stated:

“United Kingdom Ministry of Defence (MoD), intends to award a follow on enterprise agreement to Palantir Technologies UK Limited (Palantir) for continued licencing and support to data analytics capabilities supporting critical strategic, tactical and live operational decision making across classifications across defence and interoperable with NATO and other allied nations Palantir systems.”

The transparency notice then said that there had been a direct award.

There had been no competition (again) and no advertisement (again).

What was the justification for the direct award?

Direct award justification

Single supplier – technical reasons

It is considered that the contract can be awarded directly in accordance Section 41 of the Procurement Act 2023 together with paragraph 6 (absence of competition for technical reasons) and paragraph 7 (existing services where a change of supplier would result in disproportionate technical difficulties) of Schedule 5.

This is because MoD’s data analytics capabilities use Palantir data analytics architecture that only Palantir is able licence, and which only Palantir has the design familiarity and technical expertise to fully support.

Changing supplier for this requirement would involve

rebuild of the underlying data analytics architecture needing support;

reaccreditation of the new solutions at the required security levels; and

retraining of MoD personnel;

at significant cost (including to the current of level capability and interoperability with NATO and allied partners), diversion of resource, and disruption to in-train military operations and planning.

(Links added, and quotation broke into smaller (sub-)paragraphs and emphasis added.)

And what was the value of this new three-year contract, compared with the £75,215,711.11 value of the initial contract?

The value of the new contract was £240,600,000.

This is over three times as much – and note the transparency notice says that the “underlying data analytics architecture” is already in place.

For completeness, the new Act’s direct award justifications relevant here are:

The following conditions are met in relation to the public contract—

(a) due to an absence of competition for technical reasons, only a particular supplier can supply the goods, services or works required, and

(b) there are no reasonable alternatives to those goods, services or works.

And:

The public contract concerns the supply of goods, services or works by the existing supplier which are intended as an extension to, or partial replacement of, existing goods, services or works in circumstances where—

(a) a change in supplier would result in the contracting authority receiving goods, services or works that are different from, or incompatible with, the existing goods, services or works, and

(b) the difference or incompatibility would result in disproportionate technical difficulties in operation or maintenance.

Somebody at the Ministry of Defence will have been persuaded and then decided in 2025 that:

due to an absence of competition for technical reasons, only a particular supplier can supply the services required, and there are no reasonable alternatives to those services; and
the contract concerns the supply of services by the existing supplier which are intended as an extension to, or partial replacement of, existing services in circumstances where a change in supplier would result in the contracting authority receiving services that are different from, or incompatible with, the existing services, and the difference or incompatibility would result in disproportionate technical difficulties in operation or maintenance.

These issues, of course, were foreseeable in 2022 and this is why there needed to be a practical, realistic and robust exit management plan.

Had there been a practical, realistic and robust exit management plan then an authority would not need to use these direct award justifications.

The Ministry of Defence had become dependent on the software service it purchased in 2022, notwithstanding the supposed three-year contract and an exit management plan.

There is no explanation in the contract notices for why the value of the contract had shot up so much.

In parliament last month a minister said new commitments had been added:

“As part of the development of the new enterprise agreement, the MOD negotiated a strategic partnership with Palantir last September. The SPA reaffirms the strong relationship developed between UK defence and Palantir over the past decade, and includes new commitments that this Government secured from Palantir, including £1.5 billion investment into the UK, a new UK defence tech SME mentoring scheme to help companies grow and access the US market, and a commitment that London is to be the company’s European defence headquarters.”

None of these additional capabilities also seem to have been advertised.

An earlier government press release set out these claims, word for word:

“The UK will be at the leading edge of defence innovation as the government signs a new partnership with Palantir to unlock billions in investment and deliver on the Government’s Plan for Change.

[…]

New strategic partnership with Palantir to unlock up to £1.5bn investment into the UK to deliver new jobs, growth and national security.

Palantir announces plans to make the UK its European HQ for defence and create up to 350 new high-skilled jobs, cementing the UK as a state-of-the-art defence technology hub.

Palantir and UK military to develop AI-powered capabilities already tested in Ukraine to speed up decision making, military planning and targeting.

“It will see Palantir invest up to £1.5bn to help make the UK a defence innovation leader and create up to 350 new jobs, making defence an engine for growth.

“The new partnership, signed today (18 September) by Defence Secretary John Healey, will help the UK military develop the latest digital tools and harness AI technology to accelerate decision making, improve targeting and keep the British people safe from evolving threats. Palantir has also announced plans for London to become the base for Palantir’s European defence business, establishing Britain as a hub for defence technology innovation across Europe.

“The arrangement will also support the growth of British Defence Tech companies across the supply chain, with Palantir helping to mentor and develop UK companies. This will include helping British defence start-ups and SMEs to expand into US markets, including an offering on a pro bono basis.”

Here presumably the “£1.5 billion investment” would not have been a relevant consideration for awarding the contract, as contracts should not be rewarded for the promise of monies flowing elsewhere.

On the face of it, there is now nothing stopping Palantir having the contract awarded again and again, every three year cycle, perhaps tripling the amount each time.

If the government was not able to have an exit management plan that would have allowed an advertised competition in 2025 then it is unlikely to have one in 2028 and 2031 and so on, as we go on this “journey” to “where the UK needs to be by 2030”.

Palantir have landed-and-expanded.

The Ministry of Defence is now Palantir’s new commercial colony.

As I concluded in my Financial Times column:

”This is a public procurement failure. Even if the 2022 contract without any advertisement was justified, the MoD should have been preparing for a competition for the next contract. Instead, Palantir’s tools were embedded in the department and the company was awarded a second contract worth over three times as much as the first.

“Indeed, had Palantir suggested 10 times as much, the MoD would have been put in a difficult position. It also looks as if this is not the only Whitehall department facing a so-called land-and-expand tactic by the company.

“We cannot know from the public documents whether any other supplier could have provided services against the same specification because no specification has been published. In three years’ time, and in every three-year cycle, it is possible that the same will happen again. Unless evidence to the contrary is provided to the public, it appears as if the government department responsible for defence has commercially surrendered to a single service provider.”

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Three reasons why the Mandelson disclosure exercise will be a shock for the government

10th February 2026

Ministers and officials usually are in control of disclosure exercises – but here they will not be – and why that matters

Governments like to stay in control of what information is made public.

While from time to time some ministers (and a few officials) leak materials to journalists and others, the general ethos is that the government knows best about what information should be made public.

Manifestations of this ethos, at least in the United Kingdom, range from obstructive press offices, bland parliamentary answers, and cynical Freedom of Information non-disclosure decisions, to broadly applied categories of “commercially sensitive” and “national security” exemptions.

One of the core features of the government of the United Kingdom is secrecy – habitual, routine, casual secrecy.

Ministers and officials may be funded by the public and are supposed to act in the public interest, but the public are not to know what goes on – unless it suits ministers and officials.

But sometimes governments lose control over what documents and other information are made public.

And when that happens it is always an interesting political and sometimes even constitutional moment.

An experienced government lawyer once said that the art of public inquiries and public law litigations is to first control the parameters of the disclosure obligations and to then control the exemptions and sequencing of the disclosure.

This is why the government is usually so good at public inquiries and litigation where disclosure is mandated – the government has experience, skills and objectives when it comes to disclosure exercises.

Whenever you hear some demand for a judge-led public inquiry into this or that, you have to realise the government is actually quite good at dealing with managing such things.

(And this is in addition to the fact that judges and barristers heading inquiries tend not be experienced investigators – most of them spend their careers dealing with cases prepared for them by others. They can be very good at asking questions, but the questions they ask are of evidence usually compiled by someone else.)

Put simply: if you control the terms of reference and then the flow of information, you often control the outcome of most inquiries and of many court cases.

The Mandelson disclosure exercise mandated by the House of Commons is a severe shock to this settled order of information flows – and this is for three reasons.

First, the terms of reference are broad – it would seem that thousands of documents are caught.

These broad terms of reference came from the government panicking when faced with a parliamentary “humble address” motion. Ministers suddenly agreed to terms of reference which must have horrified officials and government lawyers.

The final version of the address voted on by members of parliament was (broken up for sense and emphasis added):

That an humble Address be presented to His Majesty, that he will be graciously pleased to give directions to require the Government to lay before this House

all papers relating to Lord Mandelson’s appointment as His Majesty’s Ambassador to the United States of America,

including but not confined to

the Cabinet Office due diligence which was passed to Number 10,
the Conflict of Interest Form Lord Mandelson provided to the Foreign, Commonwealth and Development Office (FCDO),
material the FCDO and the Cabinet Office provided to UK Security Vetting about Lord Mandelson’s interests in relation to Global Counsel, including his work in relation to Russia and China, and his links to Jeffrey Epstein,
papers for, and minutes of, meetings relating to the decision to appoint Lord Mandelson,
electronic communications between the Prime Minister’s Chief of Staff and Lord Mandelson, and between ministers and Lord Mandelson, in the six months prior to his appointment,
minutes of meetings between Lord Mandelson and ministers in the six months prior to his appointment,
all information on Lord Mandelson provided to the Prime Minister prior to his assurance to this House on 10 September 2025 that ‘full due process was followed during this appointment’,
electronic communications and minutes of all meetings between Lord Mandelson and ministers, Government officials and special advisers during his time as Ambassador,
and the details of any payments made to Lord Mandelson on his departure as Ambassador and from the Civil Service

except papers prejudicial to UK national security or international relations which shall instead be referred to the Intelligence and Security Committee of Parliament.”

Significantly the specified examples of information are non-exhaustive – that is the effect of the magic words “including but not confined to”.

One can only imagine the horror of officials and government lawyers when they saw the terms of the motion passed.

Second, the government lost control over who would make the exemption decisions.

What the government would normally say is that it is the cabinet to decide which material was “prejudicial to UK national security or international relations”.

But this time, the decision will be made by the Intelligence and Security Committee of Parliament (ISC) – comprised of Parliamentarians.

And as this blog set out yesterday, the ISC has already prescribed a detailed process – outside of the government’s control:

Cuttingly, the ISC tells the government that is rare for whole documents needing to be withheld.

So not only is the government facing the broadest terms of reference, it has also has lost control over the exemptions.

And then it gets worse.

The third reason why this disclosure exercise will be a shock for the government is that the disclosures are not being made to a court or an inquiry where barristers can then seek to shape what is is publicly determined about what is disclosed.

There is no judge or inquiry head that can be persuaded to gloss over what the disclosures say or don’t say.

There will be no judgment or report for ministers to point to and assert they have been “cleared”.

Instead the disclosures will be to parliament and thereby to the public at large.

There may be no contexts for the texts, no nuanced explanations, no adjudicated exonerations.

Just documents for all to see, for all to post and re-post, and for all to form and share opinions about.

Raw documents released directly into the wild.

You can see why in the United States the federal government has kept control over the disclosure of the Epstein files, regardless of what Congress has said.

(Disclosure – I am a former central government Freedom of Information lawyer.)

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

The constitutional significance of what happened to the Prime Minister last week

10th February 2026

Members of parliament moved for a parliamentary committee to decide what is prejudicial to national security instead of the government

Hurrah: now the King’s Evil Counsellor is deposed we shall be govern’d well.

This is not really a political blog, at least not in the sense of party politics.

That [A] resigns or [B] loses support is often not of wider constitutional significance.

Not every political drama has constitutional significance.

But.

What happened last week in parliament in respect of the Prime Minister and the disclosure of documents relating to his appointment of Lord Mandelson as Ambassador to the United States was constitutionally significant.

As I set out on Friday over at Prospect, the usual position is that everyone in our polity defers (or should defer) to the Prime Minister in respect of national security.

All a Prime Minister normally needs to do is utter this magic phrase, and the House of Commons hushes and High Court judges roll over. Even newspapers can go quiet.

The Prime Minister is normally seen as having special knowledge of, and a special insight into, what constitutes a matter of national security.

Last week, however, the Prime Minister Keir Starmer tried to use this magic phrase – and it did not work.

He told members of parliament that the documents relating to the appointment of Mandelson would be released by the government, apart from those which the cabinet secretary deemed would prejudice national security and international relations.

He expected (perhaps) for members of parliament to nod along.

But…

…they did not.

He even resorted to saying that any mistrust amounted to an attack on the integrity of the cabinet secretary.

But members of parliament did not buy this desperate line.

The supposed magic words had been uttered, but there was no magic effect.

Members of parliament did not believe him.

Instead of casting a spell, there was a spell that had been broken.

Members of parliament instead swiftly moved to make it that any decision to withhold materials on the basis of prejudice national security and international relations would be made by the Intelligence and Security Committee of Parliament (ISC).

The ISC is not a parliamentary committee in the same way as more familiar select committees, standing committees and all-party committees – it is a statutory creature and has a special legal nature.

But it is a parliamentary committee in the sense that it is a committee of parliamentarians.

And for members of parliament to insist that it is for a parliamentary committee, and not the cabinet, to decide on what constitutes prejudice to national security is an extraordinary development.

The government has effectively lost the confidence of the house of commons on a matter of national security.

Of course, there has not been a formal vote of confidence – but losing such a vote and losing the confidence of the house of commons are not the same thing.

For a prime minister to have lost the confidence of the house of commons means that it is (or should be) only a matter of time before he or she ceases to be prime minister.

And this is especially so for a prime minister who often boasts of his national security credentials as a former chief prosecutor of terrorists and so on.

This significant development came about because the prime minister and the government were in a position of extreme political weakness.

This weakness was partly because of the functioning of two mechanisms of parliamentary accountability.

The first was Prime Minister’s Questions – normally irrelevant political theatre – but this time used well by the Leader of the Opposition Kemi Badenoch.

In a line of questions which was impressive both for their precise content and their sequencing, she placed Starmer in the position where he had to expressly admit that he had known at the time of the ambassadorial appointment that Mandelson had continued his relationship with Epstein after the latter’s convictions.

The second was that the opposition – and many government backbenchers – used a “humble address” motion (which if passed obliges the government to disclose documents) for the release of materials relating to the appointment.

The government could see that members of parliament were going to not support the cabinet-knows-best approach to which documents would not be released.

And so in this position of extreme weakness, the government accepted it would be the ISC to decide on what constituted prejudice to national security and international relations and not the government.

Parliamentarians would decide, though ministers would advise.

The ISC has now published this (from a constitutional perspective) remarkable letter (which should be read in full).

The letter prescribes the process to be followed by the government in passing documents to the ISC.

It even tells the government that it should not seek to withhold entire documents when only a passage would be prejudicial.

This is heady stuff.

This is a shock to the system where ministers, officials and lawyers will leisurely withhold entire categories of documents on supposed national security grounds.

This should not be underestimated as a constitutional event.

What is normally decided by one organ of the state has passed to another, at least for this matter.

And returning to the world of politics, we have a prime minister and government locked into a documented disclosure exercise which it cannot control.

This is a nightmare for ministers, officials and government lawyers.

Of course, a lot of this is down to the politics of the moment – the Prime Minister has long been in a weakening position and those opposed to him (inside and outside his party) exploited a particular moment of extreme weakness.

But it is also down to the functioning of two constitutional mechanisms of accountability – PMQs and humble addresses.

And what is now a nightmare for ministers, officials and government lawyers, is a sign of a functioning constitution.

(Though, of course, the appointment of Mandelson in the first place was perhaps a sign of constitutional as well as political dysfunction.)

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.

Notes on gangster states: why legitimacy matters when the state has a monopoly on coercive and lethal force.

12th January 2026

One priority for a modern state – perhaps the highest priority – is for it to keep its citizens safe from harm.

And within that priority is the need for the state to to keep its citizens safe from harm inflicted by the state itself.

A modern state has – or should have – a monopoly on legitimate coercive and indeed lethal force.

By “legitimate” is meant that the force used will have a lawful basis, will be used in accordance with legal rules, is sanctioned ultimately by someone capable of being publicly accountable, and is capable of review by an independent court.

So what happens when this breaks down?

What happens when the it is the state that is inflicting injury and death on its own citizens – or on people in its care?

And what happens when that coercive and lethal force does not appear to have a legal basis and/or is not in accordance with legal rules and/or is sanctioned by those with no accountability and/or is not capable of independent judicial review?

That is: what happens, for any or all these reasons, the use of coercive and lethal use of force does not seem to have any legitimacy?

What happens when the only justification for the use of coercive and lethal use of force – or excuse or pretext – is that might is right?

Well, among other things, you have a fundamental failure in the functioning of a modern state.

For the key word here is “legitimacy”.

Anybody can (seek to) use coercive and lethal force – and many will get away with it.

And if that is possible, then you have a gangster state, an outlaw state, a pirate state – where anything goes by those who can use coercive and lethal force and be protected from any legal or political consequences.

Some may like the idea of such a state – some may read science fiction or fantasy fiction where there are cities or entire societies where might is right.

Or when may look at various places – now and throughout history – where any sense of a legitimate central order has broken down. And what one will often see are massacres and gangsterism.

That is why there is a quid pro quo – the state gets to have a monopoly on the use of coercive and lethal force, in return for that coercive and lethal force being used legitimately.

That is that the force used will have a lawful basis, will be used in accordance with legal rules, is sanctioned ultimately by someone capable of being publicly accountable, and is capable of review by an independent court.

Now looking at the United States, there appears to be the free use of coercive and lethal force by the federal agency ICE (Immigration and Customs Enforcement).

Last week Renee Nicole Good was killed by ICE in circumstances that seem to have been murder: a state execution of an innocent person on the streets for no good reason.

At the start of that day three children had a mother and at the end of that day they did not, just because an ICE agent decided to shoot their mother three times in the face.

I have written about this over at Prospect in an article entitled Death in Minnesota – please click here to read it.

Fatalities happen, police shootings of innocent people happen – but what was especially striking about this killing was the response of the federal government and its supporters.

For want of a better word: they celebrated the killing.

The woman somehow deserved it because she was dubbed “domestic terrorist”.

Now turning back to the general issue of legitimacy, we can see that this use of lethal (and not only coercive) force appears from from any of those elements which can (in limited circumstances) render it legitimate.

The extra-judicial execution of Renee Nicole Good seems not to have a legal basis, it was not in accordance with legal rules, was sanctioned (even implicitly) by those who seek to evade accountability, and it may not be capable of review by an independent court.

The federal state is resisting working with the local police.

It looks as if the state is confident it can get away with it.

But.

The cost of the state getting away with it will be further diminution of the legitimacy of the state having a monopoly of coercive and legal power.

Yes, as a matter of realpolitik, the state can seemingly do as it wishes.

Yet in the medium term, legitimacy matters.

A society is not easy to govern unless there is at least acceptance of the powers of the police and the military: sheer repression is expensive and often unsustainable.

That is why the wise tyrant hides behind a veneer of legalism and constitutionality.

And that is also why gangster states rarely last very long.

***

Comments Policy

This blog enjoys a high standard of comments, many of which are better and more interesting than the posts.

Comments are welcome, but they are pre-moderated and comments will not be published if irksome, or if they risk derailing the discussion.

More on the comments policy is here.