20 January 2021 — Good Law Project
The UK now has the highest COVID-19 death rate of anywhere in the world. As we try and make sense of how we got our response so wretchedly wrong, just how significant will Government’s abandonment of transparency and proper process prove to be?
The purpose of procurement law is to ensure the public interest is served and that contracts go to those most able to deliver. It protects us by requiring Government to undertake open and competitive tendering. This is particularly important at times of crisis when stakes are high.
Yet Government’s response to this pandemic has been characterised by secrecy. There are billions of pounds of public health contracts we know nothing about – we don’t know who has made the decision to spend, or with what safeguards, or why such strange counterparties were chosen. It is almost impossible for anyone to accurately assess where we’ve gone wrong because so many parts of the story are missing. And Government is being deliberately misleading about what it has and hasn’t complied with.
On 17 December, Cabinet Office Minister, Julia Lopez, responded to a question in Parliament stating that all PPE contracts had now been published.
That is simply not true.
Our litigation has revealed Government is refusing to publish whole categories of contracts, including those of significant agencies like Public Health England and the Medicines and Healthcare Products Regulatory Agency. Executive agencies have no separate legal status – there is no lawful reason to exclude these.
Further, the NAO in its second report on pandemic procurement, set out that £12.5 billion had been spent on PPE between February and July 2020, including through existing contracts with Supply Chain Coordination Limited (SCCL), which manages the NHS supply chain. However, data provided to us by Tussell on 18 December showed that only £8 billion of PPE contract awards made during that same period had been published. Procurement through existing contracts is still the subject of an obligation to publish. Yet Government has published no details of call-off contracts with SCCL relating to PPE – over £4 billion of contracts are hidden.
These breaches matter. They matter because they normalise non-compliance with the law.
They matter because they erode public trust that taxpayers’ money is being spent wisely, and that it will not just be handed to politically connected individuals, without adequate safeguards.
But most importantly they matter because without a full and honest picture of what is happening, how can we begin to turn our fatally flawed response around?
We have a Government who no longer wants to account to the people on what it does – on why we have the worst death rate in the world, on why so many families are grieving. But they cannot evade scrutiny in the courts. Our hearing is scheduled for 3rd February.
I am publishing my final Witness Statement in full.
Jolyon Maugham QC
Director of Good Law Project