Category: Contract and Commercial Law

Six Proposals for Improving Public Procurement

26th February 2026

Yesterday we saw what was wrong – here are suggestions for what could be put right

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This is a sequel, of sorts, to the post here yesterday on what is wrong with public procurement.

Here this blog will set out six things that could be done to improve public procurement.

To an extent, this is a mirror of yesterday’s post, but it is still worth setting out something positive against (the usual lot of a law and policy blog) what is negative.

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The first thing would be transparency of commercial terms.

Both the Freedom of Information Act and the Public Procurement Act should be amended so as to remove exemptions from public disclosure of the terms of any awarded public contract.

As this blog stated yesterday, contractors get enough benefit in the amounts of public money and (generally) the reliable revenue stream of public contracts. The price for these benefits should be transparency.

The exceptional circumstances where information needs to be withheld then other exemptions could apply.

Indeed, there should perhaps be a duty for the full contract terms (including commercial terms) to be published between the contract award and the start date.

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The second thing would be transparency of any intention not to advertise and compete a contract.

When – as with the Palantir contracts with the Ministry of Defence – a decision is made by a public authority not to hold a competition or advertise a tender, that decision should itself be published before the decision takes effect.

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The third thing would be to widen the class of those able to challenge a tender decision.

Generally, only disappointed tenderers can challenge a tender decision. As such, it is effectively a private law right for a potential contractor that has suffered damage by a wayward decision.

But: think about the phrase “public procurement” – and ask yourself what difference does or should the word “public” make?

The fundamental reason for public authorities having special duties of transparency and equal treatment and so on in public procurement is that these duties are in the public interest.

Public procurement should not just be about the closed – and indeed often cosy – club of established tenderers and their repeat customers.

Such tenderers have no incentive to upset a past and potential customer by challenging an adverse procurement decision, whatever the circumstances.

Indeed, the law of public procurement is practically geared for there to be very few challenges to procurement decisions.

And a legal regime without practical remedies can hardly be said to be a legal regime at all.

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The fourth thing would be for public authorities to put more resources into practical contract management.

There is little or no point in a contract having a range of provisions to enforce against a supplier if those provisions are never enforced.

It is all very well pointing to a black-letter contract if everyone involved – officials and suppliers – know in reality the public authority will never actually assert its contractual rights.

And contract management is a skilled and important role, not an afterthought – and it is a false economy to not pay contract managers the appropriate rate for the job.

Yet public authorities who will generously budget for payments to a supplier will not make adequate provision for internal contact management.

And those public authorities then wonder why they are done-over by cynical contractors acting in their commercial self-interest.

Related to this: contract management reports should also routinely be published or disclosable on request – for there is as much a public interest in transparency of ongoing contract management as there is in the terms of the contract originally let.

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The fifth thing would be for all potential public contracts a formal stage where a reasoned (and public/published) decision as to whether a COTS (commercially off the shelf) product is available.

Part of the problem with information technology/intellectual property (IT/IP) contracts is a casual and naive view by many in public authorities (though not experienced procurement professionals) that bespoke IT/IP development is somehow preferable and easy to manage.

It ain’t.

And the public authority is then often then captured by the supplier, with their hawked maintenance and support schemes, and with their dependency-culture proprietary products.

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And the sixth thing would be a greater (and more enforceable) emphasis on the principles of public procurement – equal treatment, transparency, competitive tenders, no bias towards incumbents – rather than formal compliance with elaborate statutory codes.

The important thing is that the principles are complied with, not whether a detailed prescribed checklist process (that will only benefit well-resourced tenderers) is followed.

Too often in public procurement, as well in other areas, there is a victory of form over substance.

The problem, for example, with the Covid/PPE contracts was not so much that they did not follow detailed processes, but that the very principles of public procurement were abandoned.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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 .

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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.

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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 […]”

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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.

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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.)

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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.

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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”.

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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”.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.”

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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.

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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.

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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.”

**

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

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How Trump is misusing emergency powers in his tariffs policy

10th April 2025

A good way to commentate is to start with a puzzle: something that does not make sense – or at least does not make sense at first glance.

And one puzzle about the tariff policy of Donald Trump is why he as president is devising general United States trade policy himself, by a sequence of what can only be called decrees.

This is a puzzle because the constitution of the United States expressly provides that trade policy is for Congress.

Article I of the constitution provides that Congress is “to regulate Commerce with foreign Nations”.

The same Article also provides that Congress is to have the final word on imports and exports – though that provision is framed in terms of it not being for the individual states to have the final word:

“No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.”

Neither the so-called “commerce clause” or the “import-export clause” mentions the presidency having any role in trade policy.

And if you look at Article II – which provides for the powers of the presidency (and is the Article beloved by exponents of presidential power) – you will not not see mention of trade or commerce there either.

But there he is, conducting trade policy on a whim, by decree.

There he is, not imposing tariffs on one particular foreign nation, but recasting the entire tariff policy of the United States in respect of almost every country in the world – and the only exceptions are the ones he chooses.

How is Trump able to do this, when the constitution so plainly says that it is for Congress to set international trade policy and not the presidency?

*

This is the question to which I have set out an answer over at Prospect – please click and read here.

In essence, Trump is able to do so because he is (mis)using old emergency legislation passed by Congress, which was not designed for the purpose of setting general trade policy and has never before 2025 been used for this purpose (or even used to impose tariffs on another country, let alone every country).

And Congress is letting him do so.

As such, this tariff policy is not so much an example of presidential power, but of congressional impotence.

This is not an instance of Trump running with a power provided for the presidency by Article II and running with it as far as possible.

It is instead an example of him reaching over to Article I and stealing a power expressly allocated to Congress.

*

In essence: the way this is being done is as follows.

A statute from 1977 enables a president to take measures in the event of an emergency – that there is an “unusual and extraordinary threat”.

Once the president formally declares an emergency, the president can then put in place measures – measures which are defined (if defined at all) in the most general terms.

Before 2025, it would appear that the 1977 Act was used regularly by president but only against particular individuals and to impose particular sanctions.

As such, it in a way made sense for this Act to be used in the way it was.

But in 2025 came this executive order.

This executive order – really a decree – contains this extraordinary passage:

“I, DONALD J. TRUMP, President of the United States of America, find that underlying conditions, including a lack of reciprocity in our bilateral trade relationships, disparate tariff rates and non-tariff barriers, and U.S. trading partners’ economic policies that suppress domestic wages and consumption, as indicated by large and persistent annual U.S. goods trade deficits, constitute an unusual and extraordinary threat to the national security and economy of the United States. That threat has its source in whole or substantial part outside the United States in the domestic economic policies of key trading partners and structural imbalances in the global trading system. I hereby declare a national emergency with respect to this threat.”

The rest of the decree (which should be read in full) sets out how this “threat” has come about since 1945 – indeed the decree contains a potted (if one-sided) history of post-war international trade.

In summary the deficits are structural and they have been in place a long time.

In other words: the deficits are usual and ordinary.

*

Words like “unusual” and “extraordinary” can have wide and expansive meanings.

But – logically – however wide the meaning of a word can be expanded, it (normally) cannot include its own antonym.

Unusual cannot mean usual.

Extraordinary cannot mean ordinary.

But here Trump is formally declaring that the usual and ordinary trading conditions of the United States “constitute an unusual and extraordinary threat to the national security and economy of the United States”.

And that is an unusual and extraordinary thing for a President to do with emergency legislation – or at least it should be.

*

What Trump is doing is that easy.

Regardless of the constitution expressly stating regulating trade is a matter for Congress, Trump can simply declare an emergency and so take it upon himself to recast the tariff policy of the United States with almost every country in the world.

In any sensible polity, this constitutional expropriation would face instant challenge.

The legislature would instantly check the executive, either by mechanisms within the statute or by repealing the law outright.

The judiciary would also check the executive, by ruling that acts outside the scope of the statute were outside the legal powers of the executive.

These would be the checks that would balance the overall constitution of a polity where the executive misused – abused – power provided to it by legislation.

But in the United States the separation of powers currently means little or nothing, because those powers are aligned.

A Republican majority in both houses of Congress is complemented by a conservative majority on the Supreme Court.

And so, in the current circumstances, the United States may as well not have the separation of powers at all.

Indeed, it may as well not have a written constitution, for all the good it is doing at the moment.

*

Once rulers get a taste for emergency powers they tend to carry on using them.

And if a polity has a compliant legislature and a deferent judiciary, there is little or nothing that can limit the executive’s use – misuse, abuse – of emergency powers.

What has already happened has been pretty significant – a 1977 Act has been used for Trump to recast the entire trading policy of the United States.

Similarly Trump invoked the Alien Enemies Act of 1798 – even though Congress has not declared any war – and has used it to deport humans to an industrial-sized prison in another country.

The only limits to what Trump and his circle want to do with emergency or wartime legislation seem to be set by their own imaginations.

The extent to which emergency or wartime legislation is already being put is alarming.

And it thereby is not especially alarmist to say that the current presidency may use – misuse, abuse – other emergency and wartime legislation, because they can, and nobody will stop them.

*

The Prospect article was published before Trump caved a little on tariffs.

Some of the more onerous tariffs were suspended for a period.

But think about this.

Something which was necessary because of “an unusual and extraordinary threat to the national security and economy of the United States” suddenly became unnecessary.

What Trump described in his decree as “an unusual and extraordinary threat to the national security and economy of the United States” had not itself changed – though stock and other market conditions certainly had changed.

Yet suddenly the most onerous of the emergency measures to be rushed into place were not needed.

The most obvious explanation is that what he described as “an unusual and extraordinary threat to the national security and economy of the United States” was not an unusual and extraordinary threat at all.

If it were still such a threat, then he would not have so casually suspended the measures supposedly necessary to meet that threat.

*

Trump and his circle’s taste for emergency and wartime legislation is a bad thing.

And it can only get worse, despite him caving on some tariffs.

This is not a strong, robust presidency using to the full its designated powers under Article II of the constitution.

This is a presidency taking powers allocated elsewhere in the constitution and misusing and abusing those powers – with the support or forbearance of Congress and the courts.

And this is the real emergency.

***

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How Trump’s tariffs can be a Force Majeure event for some contracts

7th April 2025

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Making sense of what is happening in the United States

18th February 2025

How can we make sense, from a constitutionalist perspective, of what is currently going on in the United States?

Perhaps it cannot make sense, perhaps it is senseless – and so there is nothing more to be said.

Or perhaps one day we can look back at what is happening, with glorious hindsight, and see that it makes perfect sense.

Perhaps.

This post, however, is an attempt to make some sense of what is happening, based on currently available information.

*

First, there is not – yet – a constitutional crisis in the United States, though it seems from the outside that the United States is very close to one.

Yes, there is conflict – but constitutions exist to regulate conflict. It is only a constitutional crisis when a constitution fails to resolve that conflict: when tensions harden to contradictions, which in turn can even prompt civil discontent and even violence.

And yes, there seems to be defiance by the executive of court orders, though the picture here is not clear. There are court skirmishes and filed appeals, and it may be that the apparent defiance is bluster and not reality. It is too soon to tell.

But if the executive branch deliberately and openly (and brazenly) defy the orders of a federal court then, yes, that would be a crisis. It would be a serious contradiction the outcome of which is not clear. Such a crisis may not lead to civil strife, but it would still be an unstable, unpredictable situation.

*

Second, it would appear that an attempt is being made to avoid Musk having any legal responsibility for what this DOGE entity is doing:

It will be (grimly) fascinating to see how this somewhat desperate tactic works out in court.

One would hope that such a tactic should fail before any objective judge looking at substance of matter, but it may work before partisan Trump appointed judges. ‪

And we should remember that Musk is no legal tactician or strategist, let alone 4D chess player when it comes to the courts.

He got himself in legal knots in his attempt to withdraw from buying Twitter, which he was then legally obliged to purchase:

And he could not even arrange his own pay-rise in the company he actually controls:

This is not masterful legal strategy or tactics, just loudly confident, well-resourced legal blundering.

Curiously Trump is a lot more legally cautious than Musk, and Trump is instinctively good at avoiding (evading) legal responsibility under a general air of plausible deniability.

Yes, he has not always succeeded – and he has criminal and civil findings against him – but these are very few compared to the sheer number of legal threats he has faced in his political and business careers.

Think about how he managed to get out of almost all the cases against him about 6 January 2021 – from impeachments to federal prosecutions.

Think about how he has always avoided personal bankruptcy – despite his many business failures.

One suspects Trump would never have ended up having to buy Twitter against his will because of legal blunders.

This reckless/cautious distinction is one key difference between Musk and Trump.

One suspect that after all this, Trump will deftly survive/avoid the legal consequences of DOGE shenanigans, and Musk and his cronies will not.

*

Third, the three key legal protections for Trump’s administration may not apply to the civil (not criminal) liability that may be triggered by what DOGE is doing:

      • Presidential pardons do not apply to civil liability – if Musk and others involved with DOGE are sued, no presidential pardon will help them.
      • The recent Supreme Court ruling giving the president a certain immunity from criminal prosecution similarly does not apply to civil matters.
      • Control of the Department of Justice will not help when matters fall to be determined by the federal courts – not all of which are (yet) dominated by Trump appointees.

The civil exposure – from being sued rather than being prosecuted – of those involved in DOGE would seem eye-wateringly high.

All sorts of contractual, proprietary, data and other rights of individuals appear to have been freely disregarded.

And on the face of it, the presidential machine offers no protection from suit from those whose rights have been breached.

No wonder Musk and others are now trying to distance themselves from legal responsibility for DOGE.

*

And fourth, and to return to an old theme of this blog: the legal form of a constitution – codified, “written” or otherwise – offers no protection in and of itself when key political actors care not for constitutionalism.

(Constitutionalism is when those with political power accord with organising rules and principles despite partisan or personal advantage.)

There is no formal impediment to determined unconstitutional behaviour.

The real problem is how one gets politicians – and voters – to care about constitutionalism.

And that is a problem which has no obvious answer.

***

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

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The paradox of the Billionaires saying that Court Orders have no value, for without Court Orders there could not be Billionaires

11th February 2025

Those saying that Orders of the Court can be freely defied should be careful what they wish for

*

*

Imagine a billionaire, and imagine then their billions being somehow, unlawfully confiscated.

These unlawful confiscations could be in terms of their physical possessions being taken away; or titles to their real property being transferred to someone else; or the transfer away of monies in bank accounts and trust funds; or the titles in intangible property, such as intellectual property rights, being fraudulently assigned; or their contractual entitlements being wrongly nullified; or whatever.

Imagine whatever the species of wealth, it was by some unlawful means no longer to be the wealth of the billionaire.

What is the poor billionaire to do?

The billionaire would contact their lawyers, and the lawyers would then take legal actions; if needs be, the lawyers would apply to the Courts for remedies and sanctions, so that the unlawful confiscations are ceased and desisted from, and the property returned, and so on.

Whatever the species of wealth, there will be some legal means for the billionaire’s lawyers to seek legal redress form a court of competent jurisdiction.

And so in each and every case, the lawyers will be seeking an Order of the Court.

And not only would the lawyers be seeking an Order of the Court, they would be expecting that the Order of the Court would be respected and would be enforced.

*

The wealth of any billionaire (or of anybody else) is ultimately a bundle of legal rights – in contract, in property, in trusts, and so on.

It is because these rights are enforceable that the wealth exists and accumulates. Unless the legal rights are enforceable, there simply is no wealth.

And any enforceable legal right usually means ready access to an Order of the Court.

But.

If Orders of the Court have no inherent value – that it is open for others to freely disobey the Orders of the Court – then what ultimately depends on Orders of Court becomes suddenly precarious.

Therefore those – billionaires and others – who say that Orders of the Court can be freely defied, on a pick-and-choose basis should be very careful for what they wish for.

For without compliance with Orders of the Court, there cannot be any billionaires.

***

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

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Why Donald Trump is not really “transactional” but anti-transactional

4th February 2025

A contract lawyer’s perspective on how Trump uses deals and deal-making

*

Contract law is (for me) the most exciting and satisfying area of law.

(Constitutional law and criminal law and media law are all very interesting in how they regulate real life activity, but only contract law is exhilarating. I once read Patrick Atiyah’s extraordinary Introduction to the Law of Contract in one go on a long plane journey, and the same author’s The Rise and Fall of Freedom of Contract is one of the best intellectual histories ever published.)

And so it is from a contract law perspective that this post looks at the question of whether Donald Trump, the businessman-turned-President, is “transactional” in his political approach.

This is certainly what many pundits are saying:

Are these pundits right?

Has this new conventional wisdom hit upon something?

*

From a contract law – and contract lawyer’s – perspective, Trump is not “transactional”.

Indeed, he is the opposite of transactional: he is instead anti-transactional.

A transaction is a two-way process, an exchange where a party agrees to do a thing in return for another party agreeing to do a thing.

To use old-style language, a transaction is a bargain, an exchange of promises.

And for the business people concerned in a commercial transaction, that contract has sanctity. So if a party does not comply or even breaches the contract there are remedies which are intended to place the injured party in the position they would have been had the agreement been properly performed. Often these are “money” remedies, but sometimes they can be injunctions or other court orders.

The court will enforce what the parties had agreed, for the agreement is the thing.

*

But for Trump, the agreement is not the thing.

An agreement is there to be opportunistically repudiated, and not to be performed.

An agreement offers an opportunity to gain leverage, for a new negotiation. for a new exertion of power.

This approach has also been spotted by one acute British observer:

For Trump, notwithstanding his ghost-written book The Art of the Deal, deals are not an art but about artfulness.

For Trump, a hire is only of any use so long as they can then be “fired”.

Transactions are just there for suckers.

*

There is nothing inherently weak in this anti-transactional approach: and indeed it has proved successful for Trump, both politically and commercially.

And, yes, he does deploy the rhetoric of “the deal”.

But this only makes him transactional in the same way an atheist going on about “God” makes them a Christian. There is instead a positive disbelief in the words and concepts being used.

And so each supposed agreement with Trump is a mere marker for the next use (and abuse) of leverage: few if any transactions will ever be transacted. Things will move on, there will be new exertions of power, and new things demanded.

For Trump, a contract, like Littlefinger’s chaos, is a ladder.

 

***

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The value of X – making sense of a re-branding, from a lawyer’s perspective

NDAs and the Public Interest – a beginner’s guide for Matt Hancock and others

2nd March 2023

The publication this week by the Daily Telegraph of the WhatsApp messages of Matthew Hancock with several third parties was unusual and striking.

It was so unusual and striking that the first response of many was: surely there must be a law against this sort of thing.

And no doubt Hancock himself thought he was legally protected, having entered into (we are told) a Non Disclosure Agreement (NDA) with Isabel Oakeshott, the ghost writer of his recent book about his experiences as health secretary in dealing with the pandemic.

On available information, it appears the ghost writer has in turn disclosed the messages to the Daily Telegraph, and the newspaper then published a selection of these messages (we are told) without prior notice to Hancock or to any of the third parties with whom Hancock messaged.

The messages are certainly of interest to the public and, given the insights they provide into how government (and the media) dealt with the pandemic – especially in respect of what happened with care homes and testing – the publication of the messages can plausibly be said to be in the public interest.

*

This post now sets out the general law of England and Wales in respect of NDAs and the public interest, and it then will apply that general law to what appears to be the facts of this incident.

In doing so, I have not had sight of the actual NDA which was signed between Hancock and his ghost writer – and, as will become apparent, a great deal can turn on the terms of a NDA.

For although NDA sounds as if it should be an acronym for a generic thing, there are many ways of framing a NDA.

NDA is not, in and of itself, a legal term of art, but instead a label of convenience.

*

To understand NDAs you must first understand what it means not to have a NDA.

If there is not a NDA between two parties there will still be the law of confidentiality.

(Technically, confidentiality is not law but what is called “equity”, which is a set of doctrines and rules which complement law, but I hope I may be permitted to call it law for the purposes of this post.)

Confidentiality usually works as follows: person (A) imparts information to person (B) and when that information has (i) the quality of confidentiality and (ii) been imparted so that it is plain that it is considered confidential, the courts will protect that confidential information when they can.

If tests (i) and (ii) are met then person (B) will be bound to keep the information confidential.

This means that if person (B) wrongly discloses that information to another, or misuses the information, then (A) can obtain an injunction against (B).

(A) can also, depending on circumstances, obtain another remedy against (B) such as an “account of profits” of the monies made by (B) in wrongly disclosing or misusing that information.

Generally, the law of confidentiality is about the remedy of injunctions.

This is because injunctions are the supposed means that confidential information can remain confidential: the cork is put back into the bottle.

*

So given there is already a general law of confidentiality, why do parties have NDAs?

There are many reasons.

First, NDAs can serve to identify and list the information which is confidential, so that there is no need to rely on the general test of whether the information has the quality of confidential information.

Second, the NDA will show beyond serious doubt that the parties were aware that the information was imparted on a confidential basis.

These two reasons supercharge the basic law of confidentiality so that the wronged party can show a court the two tests are met at law.

But there are other reasons why parties may want a NDA.

NDAs can provide the financial terms of the parties: in essence how much is being paid to the parties in respect of the exchange of information.

A strong NDA will also provide the financial consequences of what will happen if a party breaches the NDA, such as an indemnity or damages.

A NDA can also provide for the intellectual property position of the imparted information – for example, whether the receiving party also has a licence to use the information and for what purposes.

But.

Generally NDAs are signed as a ceremonial act of trust between the parties, a rite of passage.

Often people will ask for and sign NDAs without much consideration of their contents, so that they can progress with a commercial or media relationship.

NDAs also often suit both parties as a convenient shield, and a NDA can be used as the complete reason not to disclose something.

*

NDAs, however, are not magical devices.

They do not, in and of themselves as signed pieces of paper, stop an unwanted disclosure – especially if trust breaks down.

*

If party (B) wants to breach a NDA then there will often be little that (A) can do to stop them.

This is especially the case if (A) is not given notice of the breach.

For, as set out above, the law of confidentiality is generally about the remedy of an injunction.

And as injunctions are discretionary remedies of the court, they will not usually be granted if the court order would be futile or academic.

It would be too late to put the cork back in the bottle.

*

So if (A) cannot obtain an injunction to restrain publication or some other wrongful disclosure by B, what is there for (A) to do?

Well.

This will come down to the other terms of the NDA – and often with NDAs there will not be other terms.

Sometimes, especially when it is foreseeable that party (B) will breach the NDA, there can be financial terms that would deter (B) from doing so.

For example, there could be structured payments that would not be payable in the event of any breach.

Or there can be an indemnity against the costs of dealing with the consequences of a breach.

But often the NDA will be silent, for – as set out above – the NDA is usually a convenient shield or a ceremonial ornament.

*

And now we come to the public interest.

Even if (A) has been given notice of an imminent breach, if (B) pleads the public interest, then the court may not give (A) an injunction.

All (A) would then have, if they have been careful, would be other terms of the NDA.

The legal position was recently summarised by a judge:

“The modern (i.e. post-[Human Rights Act 1998]) approach as to the public interest defence is set out in the Court of Appeal’s judgment in Associated Newspapers Limited v HRH Prince of Wales […].

“The four main tenets can be summarised as follows:

“(1)  There is an important public interest in the observance of duties of confidence since those who engage employees, or who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential (ibid at [67]).

“(2)  The modern approach as to the circumstances in which the public interest in publication can be said to override a duty of confidence is whether a fetter of the right of freedom of expression is, in the particular circumstances, “necessary in a democratic society”.  The test is one of proportionality: the court will need to consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public (ibid at [67]).

“(3)  It is arguable that a duty of confidentiality that has been expressly assumed under contract carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement; but the extent to which a contract adds to the weight of duty of confidence arising out of a confidential relationship will depend upon the facts of the individual case (ibid at [69] citing Campbell v Frisbee [2003] ICR 141).

“(4)  Thus, in essence, the Court must consider whether, having regard to the nature of the information and all the relevant circumstances, it is legitimate for the owner of the information to seek to keep it confidential or whether it is in the public interest that the information should be made public.”

*

Applying these four tests in the instant case, Hancock would say that as the messages had been disclosed to the ghost writer under a contract, this “carries more weight, when balanced against the restriction of the right of freedom of expression, than a duty of confidentiality that is not buttressed by express agreement”.

Hancock would also say there was an “important public interest in the observance of duties of confidence since those […] who enter into other relationships that carry with them a duty of confidence, ought to be able to be confident that they can disclose, without risk of wider publication, information that it is legitimate for them to wish to keep confidential”.

But.

The ghost writer would say “having regard to the nature of the information and all the relevant circumstances […] it is in the public interest that the information should be made public”.

Here the ghost writer would also be able to point to the material being supplied for a book on the pandemic, as well as to the contents of the messages.

*

The Daily Telegraph did not sign the NDA and so would not be bound by its terms.

Hancock’s remedies, if any, against the Daily Telegraph would be under the general law of confidentiality, or perhaps under the law of misuse of private information, data protection law, or even copyright.

But whichever way he framed the claim, he would face (in some form) a public interest defence.

The position of third parties with whom Hancock messaged, however, may be stronger.

And one expects the Daily Telegraph legal team has been very careful in respect of third party information it is disclosing from the messages.

The Daily Telegraph must have had very bullish and robust legal advice on the public interest.

They also felt confident enough in their public interest defence not to give Hancock notice of publication.

*

Hancock is today quoted as saying:

“There is absolutely no public interest case for this huge breach.  All the materials for the book have already been made available to the inquiry, which is the right, and only, place for everything to be considered properly and the right lessons to be learned.  As we have seen, releasing them in this way gives a partial, biased account to suit an anti-lockdown agenda.”

If Hancock sincerely believes that there is absolutely no public interest defence then presumably there is no bar to him seeking some form of legal remedy against either the ghost writer or the newspaper – for example to restrain publication of messages so far unpublished.

He could even seek to obtain an account of profits from the ghost writer or the newspaper if he believes they are acting uncocionably.

So far it appears that he may not take legal action, he also has said today (emphasis added):

“I will respond to the substance in the appropriate place, at the inquiry, so that we can properly learn all the lessons based on a full and objective understanding of what happened in the pandemic, and why.”

If he believes that, one may wonder why he published a book seeking to give his side of what happened before the inquiry.

*

NDAs are usually ornaments or shields.

Unless they are tightly drafted and prudently structured, they offer little protection in practice to an imparting party if the other party deliberately breaches the NDA without notice.

As such NDAs are often articles of trust.

And here is the paradox: given NDAs often depend on trust, they usually are not needed, and if there is lack of trust, then the NDA can make little difference.

On the available information, Hancock was naive to believe a NDA would give firm, still less absolute, protection against onward disclosure of the messages.

And on the available information, there does appear to be a public interest in disclosure to the public of the messages – at least to the extent that they show public policy making and implementation in action.

As Hancock himself has published a book which has been described as misleading based on the same material, then he may struggle to get redress in respect disclosures which expose his own misleading account.

*

We do not know what were the terms of the NDA – and so we cannot pass comment on whether the NDA was well drafted for its purpose or not.

But we can evaluate the wisdom of Hancock in thinking any NDA, on any terms, would protect him against onward disclosure of the messages by a counter-party willing to breach the NDA on the basis of the public interest.

It was a daft thing for him to do.

***

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

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