Monday, 22 February 2021

R (Good Law Project and others) v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin)

The government and coronavirus:

The actions of the UK government in relation to the Coronavirus pandemic may, one day, be the subject of some form of inquiry and the Prime Minister is on parliamentary record to that effect - Hansard 15 July 2020.  In answer to a question from Sir Edward Davey MP (Kingston and Surbiton), Mr Johnson said - " ... but of course we will seek to learn the lessons of the pandemic in the future, and certainly we will have an independent inquiry into what happened."

That answer left open

the question of the type of inquiry even if there was perhaps an assumption that it would be an inquiry held under the terms of the Inquiries Act 2005.  Needless to say, such inquiries operate under terms of reference set by the government and are usually lengthy, legalistic, and expensive.  As an example, the Grenfell Tower fire occurred on the night of 14 June 2017. The Grenfell Fire Inquiry was formally set up in August 2017. Phase 1 ran from 21 May 2028 to 12 December 2018 and the Chairman issued a report on 30 October 2019. The inquiry is now in Phase 2 which is examining causes including how Grenfell Tower came to be in a condition which allowed the fire to spread in the way identified by Phase 1. Costs for this inquiry amounted to £40.2m for the period 1 August 2017 to 31 March 2019 - see here.

Accountability:

Whatever the future holds regarding an inquiry, the government's actions during the coronavirus pandemic have not entirely escaped official scrutiny. There is the work of the Health and Social Care Committee and other parliamentary committees. Further, on 26 November 2020, the National Audit Office issued a report into government procurement during the Covid-19 pandemic. The NAO noted insufficient documentation in some cases regarding "key decisions, or how risks such as perceived or actual conflicts of interest have been identified or managed. In addition, a number of contracts were awarded retrospectively, or have not been published in a timely manner. The lack of adequate documentation meant that the NAO could not give an assurance that the government has adequately mitigated the increased risks arising from emergency procurement or applied appropriate commercial practices in all cases. While we recognise that these were exceptional circumstances, there are standards that the public sector will always need to apply if it is to maintain public trust."

Good Law Project's judicial review:

The Good Law Project instigated judicial review of some aspects of the government's procurement processes and judgment has been given - R (Good Law Project and others) v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin) Chamberlain J.

The claimants in the judicial review were Good Law Project and three Members of Parliament. They alleged that the Secretary of State had failed to comply with - 

A) Regulation 50 of the Public Contracts Regulations 2015 which requires the Secretary of State to send for publication a contract award notice (a "CAN") not later than 30 days after the award of a contract with a value exceeding the applicable limit. 

B) "transparency priciples" as set out in Publication of Central Government Tenders and Contracts: Central Government Transparency Guidance Note (November 2017) ("the Transparency Policy") and Procurement Policy Note – Update to Transparency Principles (PPN 01/17, February 2017) ("the Transparency Principles"), which require publication of the provisions of any contract with a value over £10,000.

The claimants also argued that it was "apparent" that the Secretary of State, whether personally or though his officials, had "made and approved a conscious decision to de-prioritise compliance with regulation 50 and with the Transparency Policy and Principles". They referred to this as the "de-prioritisation policy". 

Chamberlain J chose to address the issues in the case in a certain order (para 7 of the judgment) and, in the following list,  his findings are shown in bold blue -

(a) Do the Claimants or any of them have standing to bring this challenge? Judgment paras 77-108. Only Good Law Project had standing.

(b) Should the Claimants be permitted to amend the Claim Form and Statement of Facts and Grounds to plead the breach of reg. 108? Judgment paras 109-119. The Claimants' application to amend the Claim Form and pleadings was refused.

(c) Did the Secretary of State have a policy of de-prioritising compliance with his transparency obligations? Judgment paras 120-124. Essentially, the claimant's case was not made out. 

(d) Did the Secretary of State act unlawfully by failing to comply with:

(i) the Transparency Policy and Transparency Principles; and/or

(ii) reg. 108 (if permission to amend is granted – see (b) above)?

Judgmet paras 124-136.

Regarding (i) the Secretary of State acted unlawfully by failing to comply with the Transparency Policy. Item d(ii) - permission had not been granted.

(e) Should the Court grant declaratory and/or mandatory relief in respect of the Secretary of State's failure to comply with:

(i) reg. 50 (where breach is now admitted); and/or 

(ii) the Transparency Policy and Transparency Principles (if the failure was unlawful – see (d)(i) above); and/or 

(iii) reg. 108 (if permission to amend is granted – see (b) above – and the failure was unlawful – see (d)(ii) above)?

Judgment para 137-160.

Declaratory relief only. The judge to consider further written submissions from the parties on the precise terms of the Order and on consequential matters.

It was noted by the judge that, by the time of the hearing, compliance with Regulation 50 was more substantial and the Secretary of State accepted that there had been breaches of Regulation 50. Such breaches were not merely "technical" and, although there had been a need to acquire goods and services within short timescales, the obligations imposed by Regulation 50 and the Transparency Policy and Principles serve a vital public fuinction of no less importance during a pandemic. 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.  This was important not only so that competitors of those awarded contracts could understand whether the obligations owed to them under the PCR 2015 had been breached, but also so that oversight bodies such as the NAO, as well as Parliament and the public, could scrutinise and ask questions about this expenditure. By answering such questions, the Government "builds public trust and public confidence in public services": see §1 of the Transparency Principles. One unfortunate consequence of non-compliance with the transparency obligations (both for the public and for the Government) is that people can start to harbour suspicions of improper conduct, which may turn out to be unfounded.

The reader will hopefully note that the case was not about allegations of "cronyism" - i.e. favouring certain types of bidders over others. The Secretary of State acted unlawfully due to late publication of contract awarded notices and it was clear that efforts had been made (or were in progress) to address the failures. In all fairness, this was not a resignation matter. The case is however significant in that high standards of public administration, as set out in the Regulations and Policy documents, were upheld. It is a pity that the government chose to contest this case when the fact of breaches was clear. Public money and court time could have been saved by a different and better response. The judge described the history of the proceedings as "unedifying" (para 153).

Note: Since the end of transition period on 31 December 2020, the 2015 Regulations continue to apply as "retained EU" law within the meaning of s. 2 of the European Union (Withdrawal) Act 2018, with modifications. For "retained EU law" please see my earlier post 30 January 2021.


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