The UK’s procurement system & judicial review: a cold deadly monster

Re the latest attack on me for moving too fast: how procurement rules + Whitehall incentives + courts kill people

Various media organisations have been leaked an email from me, sent at the height of the covid disaster last year, regarding getting cash urgently to Our World in Data (OWID). BBC story here.

Lots of the media and lawyers as usual suggest my behaviour was ‘unethical’.

This relatively trivial story shines a little light on a very big issue I referred to in my previous piece on the covid disaster — the UK’s disastrously bad procurement system which fell apart in a thousand ways and killed people.

Tellingly, a ‘Whitehall source’ says this is ‘so damaging’ for Cummings because he ‘is just being very blatant that due process, and procedures, are being thrown out the window’.

I do not regard it as ‘damaging’ that I tried to throw ‘due process’ out the window. Sticking with ‘due process’ was killing people.

I was right to send this email, I sent many other similar messages on PPE, testing, the Vaccine Task Force (see below), and my interventions saved lives / reduced suffering / speeded vital projects like vaccines. I think that if I had NOT acted like this, it would been unprofessional and unethical.

Why did I send that email?

On 22 March 2020, I wrote: ‘Someone please ensure that they [OWID] have the 530k within 24 hours from now and report back to me it's been sent. No procurement, no lawyers, no meetings, no delay please - just send immediately.’

Why?

UK government data on covid was a disaster.

This email gives an idea of how bad data was on covid at the time of my OWID email, sent 25/3/20, 2 days after ‘stay at home’, to two of the most competent people working on covid. (Exactly as sent other than I’ve removed the TO field etc and one reference to a named official [XXX]. 815 is the meeting I chaired before the 915 PM meeting.)

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To: XX

25 Mar 2020

Re dashboard

The NHS numbers remain a mess. I look at the daily COBR reports, I scribble down numbers people say at 815 or 915. I look back and none them are consistent.

Plus Different docs have different measures: ‘critical care’, O, O+, V etc. My understanding is the critical number is V which is NOT the same as ‘critical care’ [XXX] but these 2 numbers are often confused in meetings.

I think that for the 915 report, we need at least these NHS numbers:

No deaths, % increase day on day

The last doubling time (i.e take today’s number, how many days did it take for it to double to here)

Average of last 2 doubling times

What this number will be in 10/20 days if this rate continues

No ICU cases (i.e V beds), % increase day on day

The last doubling time (i.e take today’s number, how many days for it to double to here)

Average of last 2 doubling times

What this number will be in 10/20 days if this rate continues

Number of V beds free today for C19 patients.

Number of V beds forecast to be free in 10 and 20 days for C19 patients -- given both the increased demand and increased (hopefully) supply.

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No [i.e number] deaths -- number reporting seems a shitshow, different times every day. WTF use is a number for 9am that's then updated retrospectively etc.

There should be a number calculated in a sensible way and done at same time every day and is intuitively sensible. This shouldn't be too much to ask of NHS.

??

I'm truly amazed that even after weeks this most basic stuff is so hard for us to get our hands on...

Am I being unreasonable?

d

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Was I?! I don’t think so!

The Cabinet Office’s Civil Contingencies Unit and COBR system had imploded. CCU had neither the people nor skills it needed and had to be rebuilt during the emergency. During the crucial weeks of March the NHS dashboard that you now see providing data across the media did not exist.

At meetings in the days before and after I sent this email, the government’s data system for taking key decisions consisted of me dragging a white board into the Cabinet room and listening while people read out hospital numbers from scraps of paper, writing the numbers on the whiteboard, then hitting x2 x2 x2 on my iPhone and scribbling new numbers and saying to the room — so in X days, Y will be dead, in Z days the NHS is overwhelmed.

A picture from the time: this whiteboard, scribbled by me, was used in the meeting at ~1700 on Sunday 15 March where I tried to formalise the shift to Plan B. This is the day after the ‘Goldblum’ meeting at which the Warner brothers explained to the PM that Plan A (herd immunity by September) would kill hundreds of thousands and we must shift to Plan B (see earlier piece and my testimony to MPs). I spoke to Vallance that afternoon and before the meeting on Sunday 15th. He agreed on the shift. This whiteboard table was the ‘data system’ for the apex of power in UK handling covid in the crucial weeks of March!

I drew pictures like this every morning because a) there was no proper dashboard at this time, b) it’s hard for people to hold a lot of spoken numbers in their heads, c) many including the PM really struggled to understand the extreme effect of something doubling every 2-3 days (COBR documents from the time wrongly had doubling time of 5-7 days). The idea that 50 cases in London hospitals today meant *the NHS being totally overwhelmed in a few weeks* was hard for many to grasp, partly because confusing graphs showing a theoretical peak in June were in all the COBR slides.

Notice how this graph is different from the ‘single peak / herd immunity by September optimal strategy’ of Plan A — Plan A is represented as crashing through NHS capacity (shaded area), Plan B is the squiggly line, and unlike the official graphs from the time the NHS capacity line is going UP while we do urgent drug research etc. (This is similar to the graphs shown to the PM the day before, shown in my earlier blog. Note the photo timestamp and place. The PM and Hancock are trying to persuade you this switch never happened, these aren’t the droids you’re looking for...)

It was because of this nightmare that Simon Stevens and Ninjeri Pandit (one of the many brilliant young women I saw around the table who would have been a 10X better PM than the PM) got NHS-X to work with Faculty to build a new NHS dashboard. This made a huge difference and has been shown across Whitehall as an example of how data can improve management. (This dashboard, contra widespread disinformation from the usual suspects, did NOT use (or need) ANY personal patient data of any kind, it was a management dashboard for things like beds occupied, oxygen supplies etc.)

On 22 March, while watching the centre of government implode partly for lack of data while I scribbled tables like this in the Cabinet room, I was told that a) OWID was struggling for cash and b) might fold or have to stop its covid service. OWID was producing extremely valuable information for the whole world. Not just our government but all governments and researchers across the world were using it.

It was typically insane that in such a crisis such a public good would be threatened for the sake of such a trivial sum — 500k in a crisis eating billions per day. And given the situation on 22 March — as I and others were trying to bounce ‘stay at home’ through the next day to stop the NHS being destroyed — it seemed obvious that a) OWID should be immediately saved, b) given all the other things happening at the peak of the emergency OBVIOUSLY we should not waste senior people’s time going through all the normal processes, having meetings, writing stupid documents and so on.

Should I instead have said ‘make sure we stick to the EU rules’ — the rules that normally require MONTHS of meetings/process, the rules that meant that at almost this exact same time I was having to instruct officials on the PM’s behalf to ignore the normal rules and FLY PPE here so NHS staff would not have to wear binbags…?

Could I have done something else? Yes, I could have called a few billionaires and told them and they’d have sent the money. But I did not have time for such things, every hour of my time then was spent on issues affecting billions, not 500k!

I sent that email because I wanted the problem solved instantly without distracting key people from other aspects of the emergency.

This is what competent people do in an emergency that’s killing people if they’re optimising for ‘solve problems’ rather than ‘worry about bad PR/lawyers’.

The broader system problem and judicial review

I sent similar messages on many other things.

For example, here is a WhatsApp message I sent to PM/CSA/CMO/Hancock. I and others in my team were getting complaints from scientists that normal processes were hindering work on vaccines and treatments. I asked Alok and various officials to take a chainsaw to BEIS and UKRI processes that were slowing this work. I also put them in touch with the Patrick Collison (Stripe co-founder) and Tyler Cowen ‘fast grants’ initiative (all interested in how normal systems failed in covid and how to do research better should read this link).

After discussing the Vaccine Taskforce idea with Vallance in March and April, we plus the Cabinet Secretary persuaded the PM to rip vaccine work out of Hancock’s incompetent hands and create the Taskforce. On 10 May regarding a meeting with Kate Bingham, I sent this. Hancock’s plan did not have enough cash nor the right process needed for rapid vaccine progress. PPE, testing and other things had been delayed because of the difficulty DHSC had suspending normal processes. (For those with access, go and read the email from our Beijing Embassy re how the lack of a 24/7 DHSC payment system meant we were losing PPE and other orders.)

Like the OWID decision, another decision I made at the height of the crisis last year was recently the subject of legal action. The High Court found that my decision to hire a company to provide insight into public understanding of covid was ‘unlawful’ because of ‘apparent bias’. Not actual bias, which the court agreed there was no evidence of, but ‘apparent bias’. This ‘apparent bias’ existed, the court said, because there was not a paper trail showing my thought process and the extent to which I considered hiring someone else. The judge inferred that I had not considered others therefore this could look like apparent bias — if the entire paper trail was made public in a JR into bias, which is obviously very circular reasoning!

In fact I did consider hiring others, I considered it extremely quickly and made a decision — one of dozens that day, and not the most important. I did not go through a formal process, I did not write down a list of criteria and pretend to ‘rank’ different companies. We had not time, we had a disease doubling every 2-3 days. I thought very quickly, made a decision, then moved on to another similar decision, then another. That was my job. My decision was expert, as the judge accepted. (Our data was appalling, PHE’s communication plans were no good, we urgently needed to figure out how to communicate better to lower the probability of killing people by mistake, so I hired a company I knew would do an excellent job and they did.) The judge made an error of fact in concluding as she did but the broader point is: we have a system in which a year after a crisis a judge is reading papers, making mistakes about my mental processes, then declaring something is ‘unlawful’, this then reverberates destructively across Whitehall as officials are told ‘prioritise more process’, and the taxpayer is not only getting killed from bad and slow decisions but is making campaigning lawyers rich from these processes that make everything worse!

For many years fear of losing JRs meant officials have layered process upon process. I wrote about this before the referendum. They create Potemkin processes just for the paper trail for the inevitable JR. For example, regularly the PM’s Private Office say: ‘PM we’ll have to schedule another meeting to discuss briefly what we’ve just decided and someone will wave some documents under your nose so someone can take a note for the JR’ — i.e everyone pretends the second meeting is the actual ‘decision’. Then a Potemkin meeting occurs, people follow an actual script reading things out with stacks of papers on a table that are notionally being ‘considered’. And this note is then given to the court months or years later as if it is proof of ‘how the decision was made’. It’s fake. It’s a fake but everybody’s happy. And it’s a fake that in a crisis kills people. In fact, it kills people and wastes billions all the time but slowly! So nobody cares, it’s normal ‘Rolls Royce civil service government’!

This whole system contributed to the covid horror. And it will get worse.

Similarly to the above, on rapid tests I gave similarly blunt instructions to officials about ditching normal processes. So did the Cabinet Secretary. We literally said to the head of commercial and HR: ‘ignore the normal process, don’t worry about judicial reviews’. There will be JRs on that. Why shouldn’t those decisions be declared unlawful too?

Further, I found out in autumn 2020 that people who should have been working on the tests were instead working on the paper trail for other JRs brought by Jolyon ‘the kimono-wearing fox killer’ Maugham. I told them to stop that stupid work and focus on the actual work. The effect of the recent court case will be that across Whitehall the signal has been sent: even in a disaster killing thousands, YOU SHOULD FOCUS ON THE PAPER TRAIL NOT THE ACTUAL CRISIS, your real fear should be Mr Kimono not death and destruction.

And if that judgment stands, there is no reason why hundreds of other things we did to accelerate progress should not similarly be defined as ‘unlawful’ by the courts.

Heywood: disastrously wrong but SW1 listened to him

Over the years I’ve written repeatedly about the appalling government procurement system, based on EU law. I said:

1. Our EU-based procurement system is a disaster. Not only is is slow and wasteful, it pushes everyone to sign contracts with big companies with loads of lawyers (who love more bureaucracy) and freezes out small innovative companies who can’t afford the time and lawyers.

2. Because EU law dominates UK law in this field, we can improve but cannot fix this inside the EU. Replacing it is one of the big gains from Brexit. (Whitehall has gold-plated the EU rules and made them worse, it is not all the EUs fault for sure.)

3. The gains from improving it are massive, dwarfing the sums of money usually argued about in an election.

4. There are clear examples of how to do this much better. During and after World War II, huge projects such as Apollo (man on the moon) developed ‘systems engineering’, ‘systems management’ and new procurement processes such as ‘concurrency’.

5. In many ways Whitehall, the Pentagon etc have gone backwards since then. Things are getting much slower and much more expensive. (Cf. Collison’s list on speed.)

6. Look how NOBODY in the system wants to discuss this, not the MPs, not officials, not the media, nobody will talk about it.

7. Heywood, the former Cabinet Secretary, says Whitehall has ‘nothing to learn’ from the private sector on project management, data, procurement etc. He is disastrously wrong but because MPs and media don’t care about management and wrongly think Heywood is a genius — he was a genius fixer, not a genius manager, and SW1 doesn’t know the difference — they are suckered by this nonsense.

8. Despite the referendum, the May government is siding with Whitehall to KEEP the abysmal EU system in place.

9. This will kill people in a crisis.

Cf. below for some of the things I wrote before covid.

In 2020 the inevitable happened.

I had to overrule officials ‘following the rules’ to order them to send planes to collect PPE for NHS staff. I had to do similar things day after day. And I had to insist that the Vaccine Taskforce be ripped out of these normal processes so it could learn from Apollo and build concurrently, contra the normal Whitehall approach. If I had not done this, if I and others had let vaccines be run the same way almost everything else was run, the results would have been the same — no vaccine program kicking in at the end of 2020.

And what has been the reaction?

A network of lawyers, MPs and journalists are doing all they can to defend the broken system and to attack those who tried to prioritise emergency action.

In 2020 I spent about x100 more time on procurement issues than I did on politics.

Every Wednesday, while the PM and political team did PMQs, I ran a meeting in the Cabinet room to deal with these questions. (I’d started this in the first week of January but ironically they had to be cancelled because of covid and I reinstated them in the spring.)

And when in December the government published a Green Paper on procurement reform, what did the media do?

NOTHING. Not one single story, anywhere. Nada. Nothing. Zip. The SW1 circus instead spent its day spreading the entirely false story that I’d given myself a pay rise after the first wave while refusing pay rises for everybody else!

Often in history people think ‘surely such a disaster means they must learn’ but in fact the opposite happens — the bureaucracy refuses to face reality and the mistakes are repeated, the country just get smashed up. We made very similar mistakes about Germany and Belgium in 1870, 1914 and 1939.

You can see now in the UK how this happens.

Much of SW1 prefers to ignore the deep wiring of the system exposed by covid. There is a huge effort to kill reform of judicial review, which is very likely dead. Despite covid, we are likely to keep a system in which bad laws, bad management and the JR system continue to operate as a ratchet on each other that destroys performance, wastes billions, and endangers the public. (Maybe the Green Paper will improve procurement, if momentum continues, but even if it does the JR system and Whitehall incentives will remain.)

Where in the newspapers do you read about how the incentives for officials push them to protect their careers by doing things they know deep down are unethical and wasteful?

Where in SW1 do you see any impetus to get out the pliers and remove lawyers from these broken processes, now that my team has gone?

Which officials will risk their career now they see the courts passing judgement on decisions made at the height of the crisis?

You do see plenty of attacks on me and others who prioritised solving real problems rather than box-ticking. ‘Corruption’ they shout. Is corruption a problem? Yes — the current system promotes corruption, scrap it! Was corruption the big problem in covid? No — sloth, lawyers, and year after year of awful management embedded in processes that were seen as more important than outcomes — that was the big problem.

The procurement-JR-incentives nightmare is a system — a cold, wasteful destructive monster of a system. It is Moloch. It can only be fixed by taking a systems approach: systematically changing laws, habits, management, incentives, training and so on. And neither the MPs nor media will probably do much about it unless we find a way to change the rules of the game so they behave differently…

Remember: the vaccine succees only happened because the wider system failed so massively and so unarguably that for once there was very little pushback to ‘we must do this differently’. Shouldn’t we learn from this and create a proper emergency procurement system, instead of watching the lawyers feed the cold monster? And shouldn’t we think hard about incentives so next time officials enhance their careers by solving problems fast, instead of allowing our courts to tell them the opposite?

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I am gradually going through lots of documents so I can make public what really happened.

Last year the PM agreed with me there ought to be a rapid, open learning exercise on covid. He clearly changed his mind. He and Hancock now routinely lie and are trying to rewrite history. Some officials and spads are helping them. Others are trying to stop them.

If you care about this and if you agree that learning from covid could help us, and other countries, avoid or ameliorate similar or worse disasters in the future, then please SHARE this and TELL YOUR MP TO VOTE FOR AN IMMEDIATE, OPEN INQUIRY. Our elected officials have the power to do this, pressure can make it happen…

And please SUBSCRIBE!

Coming soon for subscribers: some ideas on how to reprogram the basic wiring including the parties…

Ps. Totally unconnected to the above but very relevant to covid generally. This paper has just been posted by a serious researcher. Very early genomic sequences of covid were *deleted from the NIH archive*. The author partially recovered them from google cloud. Concludes: 'likely the sequences were deleted to obscure their existence'. This makes me update further towards the view: China’s government is covering up the origins of covid because the lab leak hypothesis is true: ie. the ‘gain of function’ work I warned about a few times including here in 2019. I don’t mean ‘this is what happened’, I mean: this is another bit of evidence that nudges my belief in this direction.

PPS. To those on the free email list — on Monday I did a ‘ask me anything’ for subscribers. If you like the sound of this, then SUBSCRIBE and in a week or so you can ask me anything…!

PPPS. What is Moloch?

What sphinx of cement and aluminum bashed open their skulls and ate up their brains and imagination?

Moloch! Solitude! Filth! Ugliness! Ashcans and unobtainable dollars! Children screaming under the stairways! Boys sobbing in armies! Old men weeping in the parks!

Moloch! Moloch! Nightmare of Moloch! Moloch the loveless! Mental Moloch! Moloch the heavy judger of men!

Moloch the incomprehensible prison! Moloch the crossbone soulless jailhouse and Congress of sorrows! Moloch whose buildings are judgment! Moloch the vast stone of war! Moloch the stunned governments!

Moloch whose mind is pure machinery! Moloch whose blood is running money! Moloch whose fingers are ten armies! Moloch whose breast is a cannibal dynamo! Moloch whose ear is a smoking tomb!

…

Read SSC on Moloch, it’s brilliant and highly relevant to the covid horror…

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Further reading

In 2014 I wrote The Hollow Men about how incentives and culture in Whitehall program poor performance and anti-learning. I explained how both parties and the civil service systematically exclude those with crucial skills from crucial senior jobs and incentivise destructive behaviour. Most of the important destructive dynamics seen in Westminster’s covid response, including the failures of the Cabinet Office shaped by Heywood, were described here.

In 2017 I started a series on expertise and politics. E.g I discussed work by people like Kahneman and Tetlock on what we have learned about expertise in different fields. Some fields like fighting and physics have fast feedback loops for learning. Politics does not and elections do not generate adaptation in the way democratic theory hopes and predicts.

In 2017 I wrote The unrecognised simplicities of effective action #2: ‘Systems engineering’ and ‘systems management’ — ideas from the Apollo programme for a ‘systems politics’.I wrote, ‘Urgently needed projects to lower the probability of catastrophes for humanity will benefit from considering why Mueller’s approach was 1) so successful and 2) so un-influential in politics.’ These ideas, such as ‘concurrency’ (i.e building many vital sub-systems in parallel, rather than in series as governments normally do, to save time and money) had been forgotten by western governments (though are studied intensely in Beijing and Singapore) and were relevant to the success of the Vaccine Taskforce and failure of other projects. I described how the principles behind how Mueller made Apollo successful are like an anti-checklist for Whitehall (cf. from page 26 which is particularly depressing to re-read post-covid).

In 2018 I wrote On the ARPA/PARC ‘Dream Machine’, science funding, high performance, and UK national strategy. This explored how relatively trivial investments can decisively accelerate science and technology if the management follows certain principles. Like Apollo, it is particularly interesting because 1) it is an example of extremely unusual performance, 2) many are interested in the products (internet, computers), 3) but almost nobody is interested in the management principles that explain its phenomenal success. This contrast is fundamental to understanding why learning is so hard for normal political/government institutions: the principles behind effective action and the people able to instantiate them are so hostile to normal bureaucracies, and are so psychologically hard for senior Insiders to cope with, that case studies of high performance are seen as irrelevant or dangerous. I aso described how leaving in place the EU procurement system and EU regulation of science and technology would be dangerous for Britain. Covid exposed both problems. EU procurement and data (GDPR) rules had to be effectively suspended and there were no serious emergency processes to replace them.

In 2019 I wrote Project Maven, procurement, lollapalooza results & nuclear/AGI safety. It explored the crucial question, almost totally ignored by the media even after covid, of how the governmnt can be a good buyer and how governments think about things like existential risk. I pointed out the Bulletin of Atomic Scientists piece on the potential for lab leaks to cause a pandemic: ‘pretty much nobody with real power pays any attention to all this. If those at the apex of power don’t take nuclear safety seriously, why would you think they are on top of anything?… Total failure is totally irrelevant to the senior civil service and is absolutely no reason to change behaviour even if it means thousands of people killed and many billions wasted.’ Westminster did not want to listen — instead they said that Heywood, former Cabinet Secretary, was a genius and we should all be assured when he promised us that Britain was the best prepared country in the world for a pandemic and Whitehall had nothing to learn from the private sector on procurement, digital, data and so on.

In 2019, a few weeks before the Prime Minister asked me to go to No10, I wrote High performance government, ‘cognitive technologies’, Michael Nielsen, Bret Victor, & ‘Seeing Rooms’. This explored why the core institutions of the UK would fail in the next big crisis and what could be done. Having written about the Cabinet room unchanged since summer 1914 and the likely collapse of COBR, I then had to sit through the collapse of COBR in the 1914 Cabinet room, hitting x2 x2 x2 on my iPhone, scribbling numbers on a white board and saying ‘so at this rate the NHS will be broken in X days’.

In January 2020, after the election, I wrote a blog, Two hands are a lot, to start hiring different sorts of people with different skills — including data and project management. In it I wrote, ‘There is a huge amount of low hanging fruit — trillion dollar bills lying on the street’ if we could improve broken political institutions. Westminster howled with laughter at the idea that data scientists and great project managers combined with changing Whitehall ‘HR’ policies could exploit trillion dollar bills hiding in plain sight. Tragically the trillion dollar bill was already lying there on the pavement, playing on the news, and a few weeks later tens of thousands died for lack of data, the skills to interpret it, and great procurement and project management skills. Though my hiring/reform efforts were too late to avert disaster, some of those I started hiring in January played vital roles in the crisis and helped save lives. We created the Analytical Private Office in No10 to embed crucial, but previously unavailable, skills in the PM’s private office. Just as Red Teams have often been ignored, having the right skills/advice cannot guarantee decision-makers will act sensibly (cf. 22/9/2020) but at least it gives us a chance.