UK Gov't Failure To Publish COVID Contracts Ruled Unlawful

By Paige Long
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Law360, London (February 19, 2021, 4:37 PM GMT) -- The U.K.'s health secretary acted unlawfully by failing to publish the details of contracts awarded to suppliers throughout the COVID-19 pandemic on time, a London court ruled Friday.

High Court Judge Martin Chamberlain said there was "no good reason" why Matt Hancock breached his obligation to publish contract award notices, or CANs, within 30 days of their signing, as required under procurement regulations and transparency policies.

"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," Judge Chamberlain said.

The judge ruled on a judicial review brought in October by the Good Law Project, a nonprofit campaign group, and three members of Parliament: Debbie Abrahams, Caroline Lucas and Layla Moran.

The court had to assess whether the health secretary had acted unlawfully when he failed to publish details of the contracts within the required time frames, and whether he had purposely deprioritized his transparency obligations.

The government had argued the nonprofit and lawmakers lacked the "necessary standing" to bring the claim and that the case was academic because Hancock has now complied with his obligation to publish the bulk of the contracts. It urged the judge to take into account the "extraordinary and unprecedented circumstances" the procurement exercises took place in.

But in Friday's ruling, Judge Chamberlain said the government's compliance has only been "secured as a result of this litigation and at a late stage of it." The judge also took a dim view of Hancock's refusal to admit the extent of his breaches in correspondence until just before the Feb. 3 court hearing, saying the health secretary had repeated opportunities to do so and fix the problem.

He stopped short of handing down an order requiring the department to be put under the supervision of the court, after the government showed that while some work remains outstanding, it has been working through the backlog and is "close to complete compliance."

The Good Law Project had also sought declarations from the court that the health secretary had "systematically" failed to comply with procurement regulations and the government's transparency policy. But because it was unable to prove the department had a policy of deprioritizing those obligations, the judge said, more neutral terms were needed.

Judge Chamberlain ordered that the correct number and percentage of contracts that were not disclosed properly be made available, which can then be put into a court order declaring the breaches.

"It can be reasonably inferred that a substantial number [of contract notices] were published late and that this constituted a breach of the transparency policy in circumstances where there was no good reason to depart from it," Judge Chamberlain said. "This was also, therefore, unlawful."

A spokesperson for the Department of Health and Social Care said Friday that the government has been up against "unparalleled global demand" and has had to award contracts "at speed" in order to make sure vital supplies are reaching NHS workers and the public.

"We fully recognize the importance of transparency in the award of public contracts and continue to publish information about contracts awarded as soon as possible," the spokesperson said.

Jolyon Maugham QC, director of the Good Law Project, said the government must understand and respect the genuine public interest in how it is awarding COVID contracts.

"We have written to government with a list of proposals in the hope it might work with us to ensure proper governance of these billions in public funds," Maugham said. "For too long has government refused to recognize that legitimate public interest. Today's ruling should mark a turning point in government's attitude to these perfectly proper concerns."

The case decided Friday does not challenge an individual procurement decision. But the Good Law Project has mounted several other separate challenges, including against three multimillion-pound contracts the government entered into for the supply of personal protective equipment and another deal for a small polling company to help with message testing. In those suits, the campaign group alleges the deals were entered into without any advertisement or competition between bidders.

The Good Law Project, Abrahams, Lucas and Moran are represented by Jason Coppel QC and Christopher Knight of 11KBW, instructed by Deighton Pierce Glynn Law.

The Secretary of State is represented by Philip Moser QC and Ewan West of Monckton Chambers, and Sian McGibbon of 4-5 Gray's Inn Square, instructed by the government's legal department.

The case is The Queen on application of Good Law Project Ltd. and others v. Secretary of State for Health and Social Care, case number CO/3610/2020, in the High Court of Justice of England and Wales.

--Editing by Marygrace Murphy.

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