The Secretary of State for Health and Social Care acted unlawfully by failing to comply with the Government’s ‘Transparency Policy’ when procuring PPE (personal protective equipment) during the pandemic, a High Court judge has ruled.
In GLP & Others v SSHSC Mr Justice Chamberlain concluded that the first claimant – not-for-profit organisation the Good Law Project – but not the second to fourth claimants – three MPs – had standing to bring the claim.
In relation to the Good Law Project he said: “A challenge alleging breach of the transparency obligations imposed by the Public Contracts Regulations (PCR) 2015, and by associated policies, is..... not one that an economic operator can realistically be relied upon to bring.
“The First Claimant.....has a sincere interest, and some expertise, in scrutinising government conduct in this area. There is no allegation (and no evidence) that it is seeking to use the public procurement regime as a tool for challenging decisions which it opposes for other reasons.”
The judge added: “There is no dispute about the importance of the transparency obligations it claims have been breached. As to the 'gravity' of the alleged breaches, they relate to contracts worth (at least) several billion pounds; and there is a pleaded allegation (in respect of which permission has been granted) that they result from a deliberate policy on the part of the Secretary of State. To my mind, there is a powerful public interest in the resolution, one way or the other, of the issues raised.”
He found that the first claimant succeeded on two grounds:
- Failure to comply with regulation 50 of the PCR 2015, which require the minister to send for publication a contract award notice not later than 30 days after the award of a contract with a value exceeding the applicable limit.
- Failure to comply with the Transparency Policy and the Transparency Principles set out respectively in Crown Commercial Service documents entitled Publication of Central Government Tenders and Contracts: Central Government Transparency Guidance Note and Procurement Policy Note – Update to Transparency Principles (PPN 01/17, February 2017), which require publication of the provision of any contract with a value over £10,000.
Mr Justice Chamberlain went on to note that there was “no dispute that, in a substantial number of cases, the Secretary of State breached his legal obligation to publish CANs [Contract Award Notices] within 30 days of the award of contracts.
“There is also no dispute that the Secretary of State failed to publish redacted contracts in accordance within the Transparency Policy and Principles.”
The Secretary of State had denied that this was unlawful given that the relevant timescales were contained in policy, not law.
Rejecting the minster’s claim that the proceedings served no useful purpose (on the basis that he had now complied with the obligation to publish CANs in 100% of cases, the obligation to publish reg. 108 information in 97% of cases and the policy of publishing the provisions of contracts in 85% of cases), Mr Justice Chamberlain said: “The obligations imposed by reg. 50 and by the Transparency Policy and Principles 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 see who this money was going to, what it was being spent on and how the relevant contracts were awarded.”
The judge said 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 National Audit Office, 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 judge said.
He added that if publication had been on time, the Good Law Project would have been able to scrutinise CANs and contract provisions, ask questions about them and raise any issues with oversight bodies such as the NAO or via MPs in Parliament; and it would have been able to do so within the timescales provided by the law.
Mr Justice Chamberlain said the Good Law Project was entitled to declaratory relief but not a mandatory order.
The High Court judge said a third ground, which alleged that the Secretary of State was acting pursuant to an unpublished policy, was not made out.
Responing to the ruling the Good Law Project said: “We shouldn’t be forced to rely on litigation to keep those in power honest, but in this case it’s clear that our challenge pushed Government to comply with its legal obligations. Judge Chamberlain stated that the admission of breach by Government was 'secured as a result of this litigation and at a late stage of it' and 'I have no doubt that this claim has speeded up compliance'. It begs the question, if we hadn’t brought this legal challenge, what other contract details would have remained hidden from view?
“And whilst Government always sought to dismiss our challenge by claiming we needed to be an ‘economic operator’ to have standing, the judgment states that it is unrealistic that economic operators would have challenged Government’s breach of the law in these circumstances. In other words, if we hadn’t taken this case, there are not many others who could have done so.”
The organisation claimed that the judgment was “a victory for all of us concerned with proper governance and proof of the power of litigation to hold Government to account. But there is still a long way to go before the Government’s house is in order.”
It said it had written to the Secretary of State for Health and Social Care detailing what it claims needs to be done to improve procurement processes and ensure value for British taxpayers.