Government faces judicial review over delay in publishing details of ventilator challenge contracts worth £250m
The Government is facing a judicial review challenge from the Good Law Project over a three-year delay in publishing the details of ventilator contracts worth £247m.
In a pre-action protocol letter sent to the Secretary of State for Health and Social Care, the Minister for the Cabinet Office and the Secretary of State for Defence, the legal campaign group claim the Government's failure to release the contracts amounts to a breach of Government policy on transparency.
The dispute centres around three sets of contracts awarded between May 2020 and January 2021 as part of the Government's "ventilator challenge" programme, which called on manufacturers to step up the production of ventilators in response to the Covid-19 pandemic.
The first set of contracts highlighted in the claim were awarded to 14 manufacturers in May 2020 at a cost of £193m. A second batch of contracts awarded in August 2020 totalling £51m and a third contract totalling £3m are also targeted in the claim.
The Government published the Contract Award Notices for each of the three deals but is yet to publish the contracts themselves.
The letter before claim alleges that this amounts to a breach of the Government's Transparency Policy, which was in force until June 2021 and set out guidance advising that contracts be published in full.
The letter adds that the withdrawal of the Transparency Policy in June 2021 does not change the fact that the Government was required to comply with its transparency policy in relation to the contracts (all of which were entered into in 2020).
"Nor can the Defendants' subsequent withdrawal of the Transparency Policy constitute a justification for the ongoing breach," the letter notes.
The claim also references R (Good Law Project & others) v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin), which was brought by the Good Law Project and saw the High Court rule that under regulation 50 of the Public Contracts Regulations 2015, the Secretary of State for Health and Social Care was obliged to send for publication a contract award notice ("CAN") not later than 30 days after the award of a contract.
The letter reads: "As Chamberlain J opined at paragraph 134 of [R (Good Law Project & others) v Secretary of State for Health and Social Care], 'I doubt whether a public body could ever justify a departure from a published policy on the basis of a reason not considered at the time of departure but only ex post facto'."
The Good Law Project is calling upon the Government to either publish the contracts or provide an explanation of the failure to publish the contracts in accordance with its Transparency Policy. It has also asked the Government to confirm whether any other contracts beyond those listed in the claim were issued as part of the ventilator challenge programme.
It also asked the Government to consider Chamberlain J's comments in the previous High Court case that "the sensible course would have been to candidly admit" its failure in order to avoid the litigation, which cost the Secretary of State for Health and Social care £207,000.
A Government spokesperson said: “Throughout the pandemic, we did whatever it took to protect the NHS and save lives. That included launching the Ventilator Challenge, which saw more than 14,000 machines delivered to the NHS, meaning every patient who needed a ventilator was able to access one.
“The good work of the Ventilator Challenge has been recognised by both the National Audit Office and the Public Accounts Committee.”
Adam Carey
