The Government acted unlawfully over PPE contracts – An example of Judicial Review

The High Court heard an important judicial review this week.

The COVID-19 pandemic mandated a huge increase in government awarded contracts – ranging from the testing systems, to vaccines and to PPE. A High Court Judgement this week has found that the government acted unlawfully in awarding some these contracts and it is an excellent and up to date example of Judicial Review.

Since the start of the pandemic, there have been concerns that contracts relating to COVID-19 have been awarded not because the tender offered a superior service, but because of pre-existing relationships between those applying for the contract and government ministers.

The Good Law Project are a promotional pressure group.

The particular case in question was bought by the Good Law Project (a promotional pressure group) and the issue involved contracts awarded by Matt Hancock’s Department of Health and Social Care (DHSC). The Good Law Project is a non-profit group whose website states that its purpose is as follows:

Our mission is to achieve change through the law.

We defend, define and change the law to uphold democracy, protect the environment and ensure no one is left behind.

The basis of the legal challenge was that research had shown that the DHSC has spent £15 billion on PPE contracts but that only £2.6 Billion of that spending had been published. However, government regulations specifically state that any spending of more than £10,000 has to be published within 30 days of the contact being awarded.

The Good Law Project noted three examples whereby the government had fallen foul of its own regulations to publish the contracts:

  • £252 Million contract for facemasks with Ayanda Capital.
  • £108 Million contact with Clandeboye Agencies.
  • £345 Million contact with a company called Pestix.

In addition, the Good Law Project found that the average publication time for all contracts within the DHSC was 47 days, meaning that missing the regulatory requirements was commonplace.

The decision by the judge was clear and highly critical of the government. Justice Chamberlain said:

” 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”

Justice Chamberlain was highly critical of the government’s approach in his judgement.

He also criticised the government for trying to defend the claim (which had it had done so weakly) saying that this had cost the government £207,000 of taxpayers money. He said they should have accepted wrong doing earlier and avoided the necessity of a court hearing.

This legal judgement is damaging to the government. However, it also has a damaging political impact, with the a sense that ‘cronyism’ is at play and contracts are being awarded for the wrong reasons. Beyond these cases, there have been other cases that appear worrisome. An investigation by the New York Times in December 2020 found that:

  • Between January and November $22 Billion worth of COVID-19 contracts had been issued.
  • About $11 Billiob went to companies with political connections to the government or no prior experience in the field they were contracted for.
  • Abut $5 Billion went to companies with clear connections to government ministers or the Conservative Party.

This is a worrying trend, particularly in light of previous Brexit related mispending. For example, when Chris Grayling awarded a ferry contract worth £13.8 million to a company that owned no ships!

Another important point to note is that this Judicial Review took place in the High Court. In fact, this is where most judicial review takes place. The Supreme Court is the final court of appeal. Therefore, clear cut cases like this (the government will not appeal) will be decided without making it to the Supreme Court. When considering Judicial Review, the High Court and Court of Appeal are just as important as the Supreme Court.

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