The health secretary, Matt Hancock, acted unlawfully by failing to publish multibillion-pound Covid-19 government contracts within the 30-day period required by law, a high court judge has ruled. The judge, Mr Justice Chamberlain, ruled the failure to do so breached the “vital public function” of transparency over how “vast quantities” of taxpayers’ money was spent. The judgment is a victory for the Good Law Project (GLP), a crowdfunded not-for-profit organisation that is making a series of legal challenges related to the government’s procurement of protective personal equipment (PPE) and other services during the pandemic.
Research by the procurement consultancy Tussell had found Hancock’s Department of Health and Social Care (DHSC) had spent about £15bn buying PPE from different companies by the beginning of October, but that only £2.68bn worth of contracts had been published. Government regulations require all contracts with a value of more than £10,000 to be published, and to be sent for publication within 30 days of being awarded. The GLP highlighted three PPE contracts to illustrate their case: a £252m contract for the supply of face masks with a finance company, Ayanda Capital; a £108m contract with Clandeboye Agencies, which had previously supplied only confectionery products, and PPE contracts worth £345m with a company trading as Pestfix. None of the contracts was published within the required 30-day period. Tussell found that the average time for publication of Covid-19 related contracts was 47 days, which meant the government’s own 30-day deadline was likely to have been breached “in a substantial number of cases”, Chamberlain said. Hancock and the DHSC had fully opposed and defended the challenge, including by arguing that the GLP had no legal standing to bring a case. The DHSC’s head of procurement had explained the challenges of procuring PPE rapidly during the pandemic and ensuring that contracts were published, and the department denied it had any intention not to publish them. Chamberlain ruled: “The secretary of state’s evidence provides a cogent explanation of his historic failure to comply … but this explanation amounts to an excuse, not a justification. It follows that, in my judgment, the secretary of state acted unlawfully by failing to comply with the transparency policy.” The obligation to publish contracts within 30 days “serve a vital public function and that function was no less important during a pandemic”, he said. “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.” Jolyon Maugham QC, the GLP’s director, welcomed the judgment and said it was significant for the organisation’s other legal challenges, which include one related to the Cabinet Office’s contract with the research company Public First, which was heard on Monday. The government argues in those cases too that the GLP has no legal standing. The GLP has written to Hancock asking him to publish all outstanding contracts, and the names of companies whose offers to supply PPE were processed through the “VIP lane”, a high-priority route given to referrals by MPs, peers and others with political connections. The government has refused repeated requests to publish the list of companies. Maugham said: “I’d rather that there was no need for organisations like ours to have to sue government to get it to come clean. The public is plainly entitled to know how and with whom and at what prices government spends public money. “Anything else is a recipe for corruption. But until government understands and respects that there is a genuine public interest in how they are awarding Covid contracts, including through the VIP lane, we have little choice.” A DHSC spokesperson said contracts were awarded “at speed” to secure PPE during the pandemic, and that 8bn items were delivered to frontline workers for their protection. “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.” The GLP’s judicial review challenge was supported by the Labour MP Debbie Abrahams, Caroline Lucas of the Green party and the Liberal Democrat MP Layla Moran, who all welcomed the judgment.