Government unlawfully failed to publish Covid contracts, High Court rules

19 February 2021, 15:11 | Updated: 19 February 2021, 15:38

By Nick Hardinges

@NHardinges

The government unlawfully failed to publish the details of billions of pounds' worth of contracts related to the Covid-19 pandemic, the High Court has ruled.

Leading legal charity the Good Law Project took the Department of Health and Social Care (DHSC) to court for its "wholesale failure" to disclose details of contracts agreed during the coronavirus outbreak.

Ministers are required by law to publish a "contract award notice" within 30 days of granting any contracts for public goods or services worth more than £120,000.

During a hearing earlier this month, the organisation and three MPs - the Green Party's Caroline Lucas, Labour's Debbie Abrahams and Liberal Democrat Layla Moran - claimed there had been a "dismal" failure by the DHSC to abide by the obligation.

Together, they also argued the government had been breaching its own transparency policy, which requires publishing the details of public contracts worth more than £10,000.

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In a ruling on Friday, Mr Justice Chamberlain said: "There is now no dispute that, in a substantial number of cases, the Secretary of State [Matt Hancock] breached his legal obligation to publish contract award notices within 30 days of the award of contracts.

"There is also no dispute that the Secretary of State failed to publish redacted contracts in accordance with the transparency policy."

The judge said that the obligations to publish details of such contracts "serve a vital public function and that function was no less important during a pandemic".

He added: "The Secretary of State spent vast quantities of public money on pandemic-related procurements during 2020.

"The public were entitled to see who this money was going to, what it was being spent on and how the relevant contracts were awarded.

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"This was important not only so that competitors of those awarded contracts could understand whether the obligations ... had been breached, but also so that oversight bodies such as the National Audit Office, as well as Parliament and the public, could scrutinise and ask questions about this expenditure."

Mr Justice Chamberlain said the situation the DHSC faced in the first months of the pandemic was "unprecedented", when "large quantities of goods and services had to be procured in very short timescales".

The judge said it was "understandable that attention was focused on procuring what was thought necessary to save lives".

But he added that the DHSC's "historic failure" to comply with the obligations to publish contracts because of the difficulties caused by the pandemic was "an excuse, not a justification".

Mr Justice Chamberlain rejected the Good Law Project's argument that there had been a department-wide "policy of de-prioritising compliance" with the requirement to publish contract details.

In a statement after the ruling, the Good Law Project said: "This judgment is a victory for all of us concerned with proper governance and proof of the power of litigation to hold government to account.

"But there is still a long way to go before the government's house is in order."

In a letter to Health Secretary Matt Hancock, the Good Law Project's founder Jolyon Maugham QC invited the minister to agree to publish the names of all companies awarded public contracts under a fast-track "VIP lane" and how much they were paid.

Mr Maugham also asked Mr Hancock to "commit to recovering public money from all the companies who failed to meet their contractual obligations" and set up "a judge-led public inquiry into the handling of PPE procurement".

Ms Abrahams said in a tweet: "The significance of this ruling cannot be underestimated. It seems odd having to make this point but the government must act within the law when awarding contracts."

Ms Lucas said: "This indictment of government secrecy should spell the end of the culture of cronyism which has swallowed billions of pounds of public money during Covid crisis."

In a statement, a DHSC spokeswoman said: "We have been working tirelessly to deliver what is needed to protect our health and social care staff throughout this pandemic, within very short timescales and against a background of unparalleled global demand.

"This has often meant having to award contracts at speed to secure the vital supplies required to protect NHS workers and the public."

She added: "We fully recognise the importance of transparency in the award of public contracts and continue to publish information about contracts awarded as soon as possible."

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