Breaking the law: the curious incident(s) of the Health Secretary’s failure to publish COVID-19 contracts

Robert Wilcox

A high court judge has ruled that Matt Hancock, the Secretary of State for Health and Social Care, acted unlawfully by failing to publish details of the government’s multibillion-pound COVID-19 contracts within the required 30-day period. The Secretary of State dismissed the ruling as simply a case of “delayed paperwork”. Apart from providing further evidence of this government’s blasé attitude towards its legal obligations, the circumstances surrounding the case reveal, at best, incompetence and, at worst, a complete lack of integrity.

The requirement to publish a contract award notice (“CAN”) within 30 days of a contract being awarded is set out in Reg. 50 of the Public Contracts Regulations 2015. In addition, the snappily titled Publication of Central Government Tenders and Contracts: Central Government Transparency Guidance Note (November 2017) states that the full details of such contracts should be disclosed to the public.  

To be clear, the Secretary of State did not fail to publish a CAN on just one occasion; he has repeatedly failed to comply with the law in relation to a considerable number of COVID-19 contracts. In response, the Good Law Project, a not-for-profit organisation that seeks to uphold the public interest through the law, brought judicial review proceedings, in conjunction with several MPs, against the Secretary of State (Good Law Project Ltd & Ors, R. (On Application of) v Secretary of State for Health And Social Care [2021] EWHC 346 (Admin)).

As the presiding judge himself noted, the proceedings may have proven unnecessary had the Secretary of State come clean when he received the claimants’ letter before claim. The Secretary of State, however, merely conceded that there had been “technical breaches” with respect to the legislation and, rather than agreeing to publish the CANs within a reasonable timeframe, argued that such proceedings were futile and that the claimants did not have standing to issue them in any event (in other words, the Secretary of State suggested the claimants lacked the capacity to take legal action against him).

These arguments did not find favour with the judge, whom also noted that it was the proceedings brought by the claimants which forced the Secretary of State to admit, eventually, to breaching reg. 50. Nor did his Lordship agree that the procurement challenges created by the pandemic justified the lack of transparency. Whilst acknowledging that the Secretary of State had to respond rapidly to the evolving public health situation by procuring high numbers of goods and services, his Lordship explained that “the obligations imposed … serve a vital public function and that function was no less important 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”. If anything, transparency is actually all the more important during a pandemic. In such circumstances, the procurement choices made by the government are likely to have a direct impact on people’s lives.

Tragically, this has turned out to be the case. The House of Commons Public Accounts Committee has found that hundreds of millions of pounds were spent on personal protective equipment (PPE) which was unfit for purpose. During the first wave of the pandemic, concerns were raised by healthcare workers about the adequacy of PPE, some of whom died as a result of contracting COVID-19. The Secretary of State, however, denies that there was any such shortage.

According to the Secretary of State, the way the government has managed its COVID-19 contracts was “in the national interest”. It was certainly in the interest of some individuals. As noted in a previous blog post, an investigation by the National Audit Office found that the government has operated a “high-priority lane” for procurement, whereby politically well-connected suppliers were ten times more likely to be granted pandemic-related contracts.

Without transparency, there can be no knowledge of such contracts – short of private investigation – which makes it much more difficult to hold the government to account. And one would rightly have questions about the government’s PPE contracts. Why was a £252 million contract awarded to Ayanda Capital, a finance company, for the supply of face masks? Why were two contracts for the supply of medical gowns, worth £108 million, awarded to Clandeboye Agencies, a company specialising in the supply of confectionary products? Why were contracts for the supply of PPE worth £345 million awarded to Crisp Websites Limited, which has a trading name of Pestfix, when it had never previously supplied medical standard PPE? The Medicines and Healthcare projects Regulatory Agency is investigating the award of a £30 million contract to Hinpack, a firm that has no prior experience in supplying medical items, for the supply of test tubes. According to The Guardian, the firm’s owner, Alex Bourne, made an offer to the government to do so by means of a personal WhatsApp message to none other than the Secretary of State.

The government has played fast and loose with people’s lives during the pandemic. It has used a public health emergency to line the pockets of its friends. The rollout of the vaccine provides some much-needed light at the end of the tunnel, and it will be tempting to simply move on from this. That said, we must demand a full public inquiry into the government’s handling of the pandemic.

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