UK Government unlawfully failed to publish details of Covid contracts

Written by dailymail.co.uk on March 8, 2021. Posted in Current News

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The Government unlawfully failed to publish details of more than 500 coronavirus-related contracts on time, a High Court judge has today said.

Government officials have 30 days to publish online details of contracts for public goods or services worth more than £120,000.

But a High Court judge today said the Department of Health and Social Care (DHSC) ‘acted unlawfully’ by not publishing details of 504 of the 535 contracts awarded in the height of the Covid pandemic last year.

The court also heard 100 contracts had still yet to be revealed at the time Boris Johnson claimed to MPs that the details were ‘on the record for everyone to see’.

All of the contracts were for ‘Covid-related’ good and services – such as PPE supplies.

Collectively the deals are thought to amount to billions of pounds of public spending, according to the Good Law Project – which brought the case against the Government.

Speaking after today’s hearing, the campaign group said the delays in publishing the contracts had made ‘proper and timely scrutiny of the deals impossible’.

However DHSC today defended the delays, saying the ‘unprecedented’ pressures of the Covid pandemic meant contracts were ‘awarded at speed’.

The Good Law Project took legal action against the department for what it described as its ‘wholesale failure’ to disclose details of contracts agreed during the Covid-19 pandemic.

At a hearing last month, the Good Law Project argued there had been a ‘dismal’ failure by the DHSC to comply with the obligation.

It also claimed the Government was breaching its own transparency policy, which requires the publication of details of public contracts worth more than £10,000.

In a ruling in February, Mr Justice Chamberlain said that ‘in a substantial number of cases, the Secretary of State (Health Secretary Matt Hancock) breached his legal obligation to publish contract award notices within 30 days of the award of contracts‘.

He added: ‘There is also no dispute that the Secretary of State failed to publish redacted contracts in accordance with the transparency policy.’

In a further ruling on Friday, the judge said the DHSC ‘acted unlawfully by failing to publish contract award notices for relevant contracts for supplies and services relating to Covid-19 within the 30-day period required… in respect of 504 of the 535 contracts awarded on or before October 7 2020 – i.e. 94%‘.

Mr Justice Chamberlain also said: ‘The defendant has published 608 out of 708 relevant contracts for supplies and services relating to Covid-19 awarded on or before October 7 2020.

‘In some or all of these cases, the defendant acted unlawfully by failing to publish the contracts within the period set out in the (transparency policy).

‘The Secretary of State has now produced what he says are the correct figures showing the extent of compliance with (the 30-day requirement) but cannot produce equivalent figures for compliance with the transparency policy.

‘This is because the date on which the contract is uploaded is not recorded on the Contracts Finder database, so it has not been possible to calculate how many were published within the timescales set out in the transparency policy.’

He said the Good Law Project ‘complains about the omission of these latter figures and notes that 100 contracts still appear to be outstanding on Contracts Finder, nearly five months after the claim was issued‘.

The judge said: ‘It is unfortunate that the correct figures for compliance with the transparency policy are not available, but they are not – and there is nothing the court can do about it.’

Mr Justice Chamberlain also ordered the DHSC to pay £85,000 towards the Good Law Project’s costs.

In his ruling last month, the judge said 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.

‘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 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‘.

Speaking after the case Gemma Abbott: Legal Director of the Good Law Project told MailOnline that the DHSC’s failures were ‘not a mere administrative hiccup‘.

She said: ‘This was no ‘technical breach’, it was a failure to disclose the existence of billions of pounds of public expenditure within the requisite timeframes, with the effect that proper and timely scrutiny of these Covid-related contracts was made impossible.  The country deserves answers.’

Ms Abbot also accused the Prime Minister of misleading Parliament over his claim to MPs that all of the contracts were ‘on record’.

The High Court today heard there were still 100 contracts left to be published when Mr Johnson made the speech to MPs in the House of Commons on February 22.

He was responding to an earlier High Court judgment which ruled the Government had ‘acted unlawfully’ over the publishing of the contracts.

Tonight, a government spokesperson told MailOnline: ‘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 backdrop 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.

‘We are committed to publishing all contracts and to date have published 99% of these in the Official Journal of the EU and we are working to publish outstanding contracts as soon as possible.

‘As the 2020 NAO report recognised, all of the NHS providers audited were always able to get what they needed in time, thanks to the effort of government, the NHS, Armed Forces, civil servants and industry, who delivered over 8.8 billion items of PPE to the frontline at record speed.’

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