The Lawbuild Blog

Member's biography sheet

David Lewis — Thu, 17 Apr 2008 10:22:30 +0100

Iraq, and the Mutiny of the Generals

David Lewis — Mon, 23 Jul 2007 07:43:59 +0100

At some unremembered moment in my late twenties I became a contrarian. I adopted the assumption that a majority is invariably wrong where it holds strong and stridently expressed opinions. Being a contrarian meant then, and means now, being a right-winger.

I didn't become a contrarian through sheer cussedness. It arose when, as an employee of a London Borough, I was a member of the trade union NALGO, now merged into Unison. The local branch of NALGO had effectively been taken over by left-wingers, in fact a mixture of communists and fellow-travellers. As I watched these people in action - agitating, manipulating meetings, fomenting grievances - I realised that I found their views as repellent as their behaviour.

My instincts and political views were reinforced when I watched Question Time on television some time in July. The issue of Iraq was discussed and, as always on these programmes, I was struck by the unity of views among the (obviously hand-picked) audience, nearly all of whose questions were hostile to the war. They uttered all the usual clichés: Blair lied to us; Blair was Bush's poodle; the war was illegal; the war was wrong because no weapons of mass destruction had been found. (One audience member did mildly suggest that perhaps we should support our leaders and, amazingly, got a round of applause; which suddenly tailed off when the audience realised its mistake.)

As I listened, I asked myself why these people and their views so disgusted me. Was it simply because I disagreed with them? Was it because they were so self-righteous? Was it even because they just might be right?

Maybe Blair lied to you, but for my part I wasn't aware of the 45-minute warning until it hit the news some months after the fall of Baghdad. I understood quite clearly at the time that we and our American allies were invading Iraq in order to give effect to UN mandatory resolutions binding upon the existing criminal régime, and that the only way to do this was to effect régime change by force of arms.

Although many people who know little or nothing about international law were claiming, before the invasion, that it would be illegal, we have long known that the government had the written advice of the Attorney-General, Sir Peter Goldsmith, to the effect that war would be legal, even without a final Security Council resolution.

Of course the Attorney-General might have been wrong in law, but he gave reasons for his decision. The anti-war people tried to undermine it by alleging that he changed his original advice under political duress.

The evidence, which I admit is purely circumstantial, is that he was under political pressure not to provide the advice that the government wanted but to give clear advice one way or the other.

The Attorney-General's original advice was given on 7 March 2003. This was three days before President Chirac said he would veto a second Security Council resolution authorising war. It is essential to remember that Sir Peter Goldsmith gave his initial advice at a time when it remained possible – and perhaps seemed probable - that the Security Council would expressly authorise military action.

It was a typical lawyer's opinion: "I judge that, having regard to the arguments on both sides, and considering the resolution as a whole in the light of the statements made on adoption and subsequently, a court might well conclude that [operative paragraphs] 4 and 12 do require a further [Security] Council decision in order to revive the authorisation in resolution 678. But equally I consider that the counter view can be reasonably maintained [my italics].”

This extract reminds me of the many mealy-mouthed counsel’s opinions I used to read during my earlier career as a local government lawyer. Politicians, many of whom are inveterate risk-takers, would seize – and act - on the bit they agreed with and ignore the reservation. Soldiers, however, are not like that.

After the French virtual veto, ministers and generals no doubt re-read Sir Peter’s opinion with keener interest than before. Its ambivalence must now have seemed less comforting than before. My belief is that senior military commanders were now horrified by the lack of certainty, and pointed out to ministers that they (the generals) might have no defence if indicted for war crimes at The Hague tribunal having prosecuted war in reliance on the advice.

I presume that ministers then told Goldsmith, in no uncertain terms, that he had to come down off the fence and rule either for or against the legality of the war. They would, in my view, have been entirely justified in doing so. Goldsmith, in response, could have refused to change his advice; but this would, in effect, have been the same as ruling against the war. At all events, on 17 March 2003 the Attorney-General advised the government that “the authority to use force under Resolution 678 has revived and so continues today.”

You might be thinking: “The circumstantial evidence points just as clearly to the possibility that ministers pressured the Attorney-General to advise that the war was legal.” I accept this; but I very much doubt whether senior counsel – who are generally fairly rich and fairly arrogant – would respond in a compliant way to crude, direct pressure. Lawyers do, however, like to please their clients, and I accept that the truth may lie somewhere in-between the twin poles of “pressure to advise clearly” and “pressure to advise favourably”.

I have not seen it suggested that the military would have refused to wage a war not "certified" as legal by the Attorney-General, but in the international climate prevailing then and now they would have been fools not to have done so. What seems certain is that we were spared the extraordinary constitutional crisis that would have ensued if Her Majesty's armed forces had declined to accept the orders of Her Majesty's Government to prosecute a potentially illegal war. Sir Peter Goldsmith's decision to declare the war legal averted the risk of an act of military dissent that would no doubt have become known as the mutiny of the generals.

The Attorney-General's reasons for pronouncing the war legal included the fact that the Iraqi government had not fully complied with its obligations to disarm under UN Security Council resolution 687 (1991), which imposed continuing obligations on Iraq to eliminate its weapons of mass destruction in order to restore international peace and security in the area. “Thus, the authority to use force under Resolution 678 has revived and so continues today. Resolution 1441 would in terms have provided that a further decision of the Security Council to sanction force was required if that had been intended.”

Resolution 1441 (2002) recites Iraq’s failure to provide accurate, full, final, and complete disclosure of its WMD programmes, its obstruction of access to sites designated by UNSCOM and the IAEA, its failure to co-operate fully and unconditionally with weapons inspectors, its cessation of such co-operation in 1998, the absence since December 1998 in Iraq of international monitoring, inspection, and verification of weapons of mass destruction and ballistic missiles; and Iraq’s failure to comply with Security Council resolutions on terrorism, on ending the repression of its civilian population, requiring access by international humanitarian organizations, and requiring Iraq to return or account for Kuwaiti and third country nationals wrongfully detained by Iraq and to return Kuwaiti property wrongfully seized.

In other words we are talking about an international criminal state which had failed to comply with a succession of mandatory UN Security Council resolutions.

It follows from all this that it is entirely irrelevant that no weapons of mass destruction were actually found in Iraq, because one of the reasons why military action was started is that the Iraqi régime was not giving UN inspectors the access and information they needed in order to determine whether or not the régime was holding WMD.

Of course, it would have helped if both allied governments had made this clearer at the time. Presumably the politicians on both sides of the Atlantic had concluded that the public, and in our case Parliament, would not accept war unless they could be persuaded that WMD actually existed in Iraq. However, both governments made public what evidence they had, so that Parliament could decide for itself.

People forget - or deliberately ignore - three important things about Saddam and his régime. The first is how unbelievably cruel they were, both to their enemies and to their own people. The second is that even if they didn't have WMD in 2003, they certainly had them earlier because in the 1980s they used them against their own people and the Iranians in the form of poison gas.

The third forgotten fact about Saddam is that he had plenty of form. He had attacked four of his neighbours: Iran in 1980; Kuwait in 1990; and Israel and Saudi Arabia in 1991. It is true that between 1991 and 2003 he was being "contained", more or less successfully, but perhaps the Americans felt it would make better sense to have a government in place that would not need to be "contained" at great cost to their taxpayers.

The allied governments have been justly criticised for their conduct of the war, and for their administration of Iraq, following the fall of Baghdad. Their errors included the irrational decision to disband the Iraqi army and police force, and perhaps the time taken in handing over to an elected government. But so far as I am concerned, Britain's decision to participate in the invasion of Iraq was legal, because the government was clearly so advised by the then Attorney-General. You may disagree with Sir Peter Goldsmith if you wish; but from whom do you expect the government to take legal advice if not from its principal legal adviser?

Back to school

David Lewis — Sun, 25 Mar 2007 12:48:03 +0100

In his letter the Headmaster of my old school reminded me of my promise made a couple of years earlier to donate certain memorabilia to its proposed museum project. The new Humanities Forum, in which mine and other items bearing on the history of the School were to be incorporated, would be opened shortly. The Headmaster confirmed that I would be a welcome guest at the evening opening ceremony, and said he would be obliged if I could send my contributions to the School in short order.

These items included: information for parents of new boys, including School rules (September 1956); an official photograph of the entire School (Easter 1960); and a complete set of my School reports (1956 to 1961).

Though these were precious possessions I had no hesitation in parting with them. I far preferred them to be displayed where they could be seen and appreciated by many people for as long as the School exists, than to lie in a file that would, in all probability, be thrown away after I am gone. So after taking some photocopies I posted my material to the Headmaster.

The history of Westcliff High School for Boys is reasonably well known to those who passed through it. A major event, well documented in the exhibition, was the evacuation of the School to Belper during the Second World War. But aside from such landmarks the School’s history is essentially marked by its headmasters, each of whom seems to have held office for around twenty years. In my time the head was Henry Cloke, a man of immense gravitas whose wisdom and other qualities I was able to appreciate both then and now. (He died in 1994.)

I had every intention of attending the opening ceremony for the Humanities Forum, which was of course to be held in the School itself. More than 45 years had passed since I had left it, and I had long been curious to see what it was like now. To that end I had joined the Old Westcliffians Association in the 1990s, but had not attended any of its functions because either they were not being held at the School or the date was inconvenient. This time I was determined to be present.

If you are going to make a nostalgic visit to a place you knew best during daytime, then time your visit for the hours of daylight. I definitely lost something by visiting the School after dark; I could not see it properly in its surroundings, or fully appreciate the views from within (such as they were). But I did not lose everything by any means.

The visit was for me a magical occasion, during large parts of which I was simply communing with myself and comparing what I now saw with what I could remember. Much was the same or similar, much was different. The assembly hall seemed little changed, as did the one classroom that was open (and which had those high windows that let in the light without affording us boys the distraction of a beautiful view over the playing fields). The classroom might well have been one I had once occupied. The antiquated-looking central heating radiators could have been, perhaps were, the same as those which in my day had blasted out their unregulated heat (thermostats weren’t so universal then as they are now), though these cast iron relics seemed shorter than I remembered. The quadrangles were identical, but not the open spaces formerly enclosed by them, into which the School had effectively extended itself. The main entrance hall was probably much the same, though I didn’t recall it. The staff room was in the same corner as I remembered it, though possibly in a different room. The exploration I undertook in order to make these comparisons absorbed me utterly during much of the visit.

During this reverie I noticed people sitting inside the assembly hall (still of course in its old location between the two quadrangles). As I peered in, an authoritative gentleman, whom I correctly assumed to be the headmaster, enquired, "Are you going in?" I switched into my literal mode, which is well known to my associates, and answered, "I don't know. What's going on in there?" With a touch of impatience Mr Baker informed me that this was "the continuation of the evening" and directed me to the back of the hall. I wandered in, a beatific smile on my face. I had not woken, after all. I was still a schoolboy and the headmaster was telling me, "Stop daydreaming, Lewis. Go in and sit at the back, boy." Yes, sir.

My contributions, along with many others, were displayed most professionally. My panoramic photo, about a metre long, of the whole school at Easter 1960, appeared with a few others belonging to different eras. Only about half of my reports were displayed, unfortunately not including the one for the Lent Term 1957 when I came top of the form. (There were no School reports other than mine, by the way.) The caption kindly noted that I had had a successful School career, and with whatever objectivity I possess, and allowing for some poor results in subjects I had little interest in, I think that was a fair assessment. In particular I had been “promoted”, in 1959, from Form 3B to Form 4A, and thence in 1960 – skipping the Fifth Form entirely – to Lower Sixth Arts. Would that I had made more of my promising results, had resisted the temptation to join the world of work so early, and had gone on to University. But I was not content - I cannot now remember exactly why - so my parents agreed to take me out of the School in 1961.

The display also described the masters’ comments in my reports as “concise”, which they were: just a line or two such as “Very good progress” (English), “Remains weak” (Physics); or occasionally something a bit longer: “He must revise his Geometry thoroughly if he is to pass. He has the ability and must make a tremendous effort in the next few weeks.”

The Headmaster, Mr A.J. Baker - by this time I had stopped pretending to be a schoolboy and we were speaking man to man - told me that these days reports had to be much longer and must state what the pupil has to do in order to improve. But to what end? It was always obvious to me that in order to do better I must pay more attention, study harder, take more pains over my written work; on the not sufficiently frequent occasions when I did so, my results improved, and when my laziness prevailed they did not.

My copy of the School rules was displayed with comments to the effect that they were clearly intended to be complied with. That was true enough, but in practice the regime was somewhat liberal and I am certain that many of the rules were habitually broken with no attempt at enforcement. Boys did not invariably obey the injunction not to “shout, talk in loud tones or indulge in any horse-play in the streets or in any public conveyance.” They did cycle to School, as I did, without a permit signed by the form master. They undoubtedly were known to talk in the passage between the two quadrangles and on the way to Morning Assembly. There were 24 rules in all, my personal favourite being Rule 1: “Any breach of law or by-laws or of common sense and good manners is a breach of School Rules.”

Also exhibited were the programme and menu for a dinner held to mark the retirement of my old headmaster, Henry Cloke, in 1970. I was present at that dinner (which was not held at the School), and recall approaching Henry after the meal and introducing myself. The great man, who had known the names of all his six or seven hundred pupils at any given time, had evidently forgotten mine as he responded: “Ah, yes, Lewis: mathematician at Leicester.”

As I perused the photographs on display I noted that some of the masters who had taught me had been staff members from the very establishment of the School on its present site in 1926. I had known, and vividly remembered, these legendary men. I was not merely a guest or an Old Boy; I was a living link between the School’s origins and its present.

Listening to the excellent speech made during the opening ceremony by the Head Boy, I felt great pride, and a sense of connection to this young man and his fellow pupils who, like me, were the product of this place. Essex is not especially reknowned for its centres of excellence, and yet here was an outstanding one, fit to stand comparison with any grammar or public school in the land, both in my time and today.

The headmaster and other speakers referred to the School's impressive capital programme, involving expenditure of more than four million pounds on various building projects including the extension whose opening we were celebrating. Of course we Old Boys respect and admire the School and its leaders for conceiving and carrying through this programme of works with drive and efficiency. But that is not why we revere the School. We revere the School because it has preserved and enhanced those values which it imbued in us as schoolboys and which have sustained us ever since, and because it has instilled them in succeeding generations over eight decades and in the face of a general and continuing deterioration in the educational and moral principles of the nation.

Several days having passed since my visit to the School, I suddenly remembered my conversation with Henry Cloke on the day of my departure in the summer of 1961. Shaking my hand, he extended an invitation that I was to take only too literally: “Goodbye, Lewis. Come back and see us – but not too soon.”

Ian Duncan Wallace: the hammer of the JCT

David Lewis — Wed, 25 Oct 2006 21:56:53 +0100

Last week I received this email from the Society of Construction Law to its members:

Some of you may have seen the following entry in The Times on Tuesday 17th October.

It was thought that some members will have known Ian and perhaps also missed this notice.

"WALLACE

Ian Duncan passed away on 1st August 2006. A Thanksgiving Service will be held for his life and work on Monday 13th November 2006 at TempleChurch, Temple, London EC4 at 5.45 pm"

I sensed in this message a hint of embarrassment that it should have taken the Society two and a half months to bring to its members’ notice the passing of that giant of construction law which Ian Duncan Wallace QC, the learned editor of Hudson’s Building and Engineering Contracts, assuredly was. Though (I believe) he retired some time ago, did members of his family not swiftly notify his former chambers of his death, and did his erstwhile colleagues not rush to impart the news to their construction law associates, so that one might have expected it to have reached the Society of Construction Law within days if not hours? Apparently not.

Incidentally, although the notice in The Times appears to give the deceased's surname as Wallace and his forenames as Ian Duncan, the fact is that he was known to the construction law world as “Duncan Wallace”, and I always understood that Duncan was not his second forename but was the first part of his surname.

Be that as it may, though this humble practitioner was almost certainly unknown to Duncan Wallace he did have a decisive effect upon my career.

(I say "almost certainly" because I know of one instance in which his name was linked to mine by no less a legal luminary than Lord Millett, in the 2000 House of Lords case of Alfred McAlpine Construction Ltd v Panatown Ltd. Referring to an article of mine published in the Construction Law Journal, his lordship said: "I agree with the Court of Appeal that the [collateral warranty] was primarily designed to cater for subsequent purchasers. This is also the view expressed by Mr. Duncan Wallace Q.C. in "Third Party Damages: No Legal Black Hole?" (1999) 115 L.Q.R. 394 and is confirmed by an article by Mr.David Lewis in (1997) 13 Const. L.J. 305." My pride in being cited as persuasive authority by Lord Millett, and also by his colleague Lord Goff of Chieveley, is only slightly dented by the fact that they were outvoted in the decision by three to two.)

Between 1974 and the mid-1980s I was Assistant Borough Solicitor with Islington Council. My responsibilties included oversight of the Legal Department’s Contracts Section, whose staple diet was the JCT 63 form of building contract. At that time I wasn’t all that familiar with building contracts, but there came into my hands a copy of an article written by Ian Duncan Wallace in one of the law journals. The article was about JCT 63, which the author demonstrated, using numerous examples, to be heavily weighted against employers and in favour of contractors.

At this point I should mention Duncan Wallace’s writing style, which I became familiar with over the years. Not for him a delicate raising of the eyebrows to suggest moderate surprise, nor even the rapier thrust of fierce debate. Duncan Wallace’s method was the hammer blow, or rather a succession of hammer blows raining down on his luckless victim. His prose was an equally blunt instrument: on a good day you could more or less understand what he was saying; on a bad day he could be thoroughly obscure. But however impenetrable his words, there was never any mistaking the object and vigour of his attack.

JCT building contract forms and their forerunner, the RIBA form of contract, were created and developed first by the RIBA and later by the JCT or Joint Contracts Tribunal, and they have dominated the field of building (though not engineering) contracts since the early years of the twentieth century. Unlike the Holy Roman Empire (mentioned elsewhere in this blog), the JCT was and is joint, and was and is to do with contracts. But just as the Holy Roman Empire was no empire, so the Joint Contracts Tribunal was (and is) no tribunal. What it was (and despite incorporation more or less remains today) is a committee composed of representatives of employers (property owners, developers and local authorities), construction companies and main contractors, tradesmen and subcontractors, and neutrals (architects, quantity surveyors and engineers).

During the 1960s and 1970s the JCT had come under the domination of the contractors’ side, and I have no doubt that this was due to weakness and inertia on the part of the employers’ side and their unwillingness to invest time and resources in fighting their corner. As I later discovered when a member of a JCT working party, the contractors had the power to make things happen, and the subcontractors had the power to stop things happening.

Fast forward to 1979. The JCT is planning a new edition of its flagship standard form of building contract, which will become known as JCT 80. The Association of Metropolitan Authorities, one of the local authority representative bodies on the JCT, sends a circular to its member authorities inviting comments on and criticisms of JCT 63.

The circular lands on my desk, perhaps (I cannot now remember) with a request or instruction to respond to it. At all events, I am ready and willing to respond. I have long been in possession of, and have read and absorbed, a photocopy of Ian Duncan Wallace’s 1973 article (and how I wish I had taken a copy with me when I left the Council’s service in 1990). I now compose a lengthy reply to the AMA’s circular, paraphrasing copiously from Duncan Wallace’s article, clause by clause, hammer blow by hammer blow.

My letter is well received at the AMA. The then Borough Solicitor and I are invited to join the Contracts Panel which the AMA and GLC have set up to advise their representatives on the JCT. I find myself serving on the Contracts Panel during most of the 1980s. Local government is at last using its strength to improve the contractual position of employers, and I am part of that effort.

In 1982 I am appointed as the Association’s representative on the JCT’s Management Contracting Working Party, where I labour mightily to help in producing the JCT form of management contract. I address the JCT, on the management contract, in a speech which asserts the rights of the employer and occasions no little controversy among the members of that august club. Five years on, in 1987, the working party’s efforts are rewarded by the publication of the JCT management contract, a fast-track procurement method still being successfully used to this day.

And for me it all began with that piece by Ian Duncan Wallace. I don’t know whether, if I had not read that article, which made such a great impression on me, I would have become as involved as I did in construction law, or whether I would have acquired the theoretical knowledge which later enabled me to obtain employment in private practice and to translate that knowledge into practice.

Obituaries and eulogies of Ian Duncan Wallace will rightly emphasise his great contributions as a barrister and a writer to the knowledge and practice of construction law. To which I would add a mention of his iconoclasm, his championing of the just against the unjust, of the fair against the unfair. For it was undoubtedly his righteous indignation at the injustice and unfairness of the JCT contracts in 1973 which set me on my decades-long career as a construction lawyer.

GMP and the Holy Roman Emperor's new clothes

David Lewis — Sat, 14 Oct 2006 18:18:43 +0100

With all due modesty, and perhaps with a degree of self-delusion, I have gone through life trying to think clearly, to see things as they are, and occasionally to point out that the Emperor has no clothes. (As you will see later, that is not the last imperial reference in this article.)

Although I must have always had the innate ability to do this, I often didn't succeed in the early part of my career. A great friend of mine and a fine lawyer, Michael Fox, who was my boss and my mentor during the 1960s, trained me in the art of thinking clearly, largely by urging me not to "think in blocks". After absorbing Michael's wisdom, I trained myself in the art of clear thinking, and I continue to do so. (Sadly, Michael died in 1987, at the age of 50.)

There's a distinct downside to being a clear thinker, because you find that many around you prefer the woolly variety of reasoning. And woolly thinking is not necessarily a drawback in life; if accompanied by emotional intelligence, charm and charisma, woolly can earn you as much money and respect as intelligence (more in fact).

These thoughts were prompted by an interesting discussion I had with a quantity surveyor (and a very clear-thinking one) about one of those buzzwords that cause confusion in the construction industry: confusion not to the woolly but to the clear-thinking.

The buzzword is "Guaranteed Maximum Price" or GMP, and it is often used in the context of a design and build contract. The woolly know exactly what it means, while the clear-thinking can only guess.

There was an immediate meeting of minds between my QS friend and me, when we found that neither of us had been able to discover any difference between a GMP and the contract sum under a standard JCT design and build contract. The contract sum under a design and build contract is a guaranteed maximum price for all practical purposes.

When someone talks about GMP, ask them if a client under a building contract with a GMP can require the contractor to (say) build an extra storey without an increase in the contract sum. They will obviously have to admit that a significant variation must entitle the contractor to an increase in the contract sum, GMP or not.

Then try to find out what else might distinguish a GMP from an ordinary contract sum under a design and build contract. Is it that the contractor bears the risk of adverse weather conditions or other "neutral" delaying events? When they gratefully seize on this, point out that such a transfer of risk wouldn't affect the contract sum; instead it would require the contractor to pay liquidated and ascertained damages for the resultant period of delay.

Is it that a GMP contract sum remains the same even if the contractor finds difficult ground conditions which cost him money to overcome? Perhaps, but under a design and build contract adverse ground conditions are normally at the contractor's risk anyway.

So what is a GMP, precisely?

I discovered the apparent answer to this question in Cockram's Manual of Construction Precedents, which contains a "Price and Payment Schedule (Target Cost/Guaranteed Maximum Price) for use with JCT 2005 SBC/XQ".

The learned author of this work, in a footnote, says that the principle behind this form is to convert the contract sum into a prime cost arrangement, under which the contract sum has three elements: the amounts payable by the contractor to subcontractors and suppliers (the "work cost"); the contractor's site overheads ("prelims cost"); and a percentage mark-up on works cost and prime cost for the contractor's head office overheads and profit ("fee"). And the form also allows for provisional sums, i.e. elements which cannot be priced before the contract is awarded.

The Cockram form provides for a Target Cost, which is the estimated total of the works cost and the prelims cost and is stated in the contract. The Target Cost can be adjusted for variations or provisional sums. And then you have an incentive adjustment, so that the contract sum is reduced if the actual cost exceeds the Target Cost, or increased if the Target Cost exceeds the actual cost. So the contractor (apparently) has a monetary incentive to keep his costs down.

It strikes me that a contractor who is incentivised to keep his costs down might be equally incentivised to cut corners. But be that as it may, a contractor under an unamended lump sum contract is just as incentivised to keep his costs down because (since the contract sum is fixed) he can thereby increase his profits.

It was at this point in my researches - and possibly while pondering the absence of His Imperial Majesty's new clothes - that I was reminded of Voltaire's famous remark about the Holy Roman Empire: that it was neither holy, nor Roman, nor an empire.

Could one not likewise say that a Guaranteed Maximum Price (according to Cockram) is neither guaranteed, nor maximum, nor a price?

Minimising the risks of construction litigation

David Lewis — Tue, 04 Nov 2003 11:48:00 +0000