Huge money, weird counterparties, duff product - and no transparency

by Good Law Project

Huge money, weird counterparties, duff product - and no transparency

by Good Law Project
Good Law Project
Case Owner
We bring cases to protect the public interest in transparency and good governance.
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on 11th September 2020
£204,900
pledged of £240,000 stretch target from 7,950 pledges
Good Law Project
Case Owner
We bring cases to protect the public interest in transparency and good governance.

Latest: March 16, 2021

What have they got to hide?

Last night’s Panorama gave us the extraordinary tale of a dog food supplier turned PPE broker bagging herself millions acting as a ‘bridge’ for a Hong Kong supplier. Details of…

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These are worrying times. 

We know from Treasury documents that Government has approved a staggering and unprecedented £15 billion for PPE procurement to protect frontline staff. But what we see is implausible counterparties, staggering sums of money, political connections, vast waste on duff product - and most of all a lack of transparency.

The law is clear, mandatory and unconditional: regulation 50 of the Public Contracts Regulations 2015 gives Government 30 days to publish details of contracts. But Government is routinely ignoring the law. 

According to data produced by Tussell, a data provider, so far only £2.68 billion of PPE spending has been made public. And, even where it has been made public, it has been made public unlawfully late, as can be seen from the chart below, also prepared for Good Law Project by Tussell.

The vast sums of procurement spending without any transparent tender process creates a special need for transparency - and yet we suspect that Government is deliberately holding back details of the most politically sensitive spending. For example, none of the eleven PPE contracts entered into with pest-control specialists Crisp Websites Limited have yet been published despite Government saying on 17 June that "full details will be published in the coming weeks."

A cross-party group of MPs - Caroline Lucas (Green), Debbie Abrahams (Labour) and Layla Moran (LibDem) - alongside Good Law Project have launched legal action against Government for its persistent and unlawful failure to disclose details of COVID-related contracts. 

It is in the nature of opaque contracting that it is difficult to give examples. However, the pre-action protocol letter - which you can read here - does identify a number. And we are working with a leading international news agency to bring you, we hope, an explosive further example.

The legal team

The Claimants have instructed Deighton Pierce Glynn, Jason Coppel QC and Christopher Knight to try and secure transparency in the public interest. They will work at considerably below market rates.

What are we crowdfunding for?

We need your help to cover the costs of running the litigation.

10% of the funds raised will be a contribution to the general running costs of Good Law Project. We will use any surplus to develop other litigation to protect the most disadvantaged.

Good Law Project’s founder, Jo Maugham QC, continues to work unpaid.

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Update 10

Good Law Project

March 16, 2021

What have they got to hide?

Last night’s Panorama gave us the extraordinary tale of a dog food supplier turned PPE broker bagging herself millions acting as a ‘bridge’ for a Hong Kong supplier. Details of the largest contract – worth £178m – came to light only after the BBC’s probing prompted the Government to publish. 

It sought to explain its failure as an “admin error.” But even if true – which we doubt – this doesn’t justify a further breach of the law on transparency. Despite the High Court ruling in our favour last month that Matt Hancock had broken the law in failing to publish pandemic contracts the failures continue. Meanwhile, Boris Johnson and his Minister mislead Parliament about the scale of the breaches. And refuse to come clean about the beneficiaries of its ‘VIP’ lane. 

In his judgment, Judge 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.” We agree. And so we have today written to Matt Hancock launching new legal proceedings for his continuing failures to comply with the law. 

Our grounds focus on two key issues:

  • First, the Secretary of State’s failure to comply with his obligations to publish Contracts Finder notices (CFNs) within the requisite 90 days. In relation to contracts entered into on or before 7 October 2020, he had failed to do so in well over 50% of cases.
  • Second, the Secretary of State’s decision to obscure the key provisions in contracts. Many contracts are being published in heavily redacted form – one example from December shows the quantity, unit price, size and colour of gowns being redacted; another contract entered into almost a year ago but published only this month is so heavily redacted that no information whatsoever is visible regarding what was even purchased. Publication in this form isn’t transparency; it is advertising the lack of it.

“One unfortunate consequence of non-compliance with the transparency obligations…is that people can start to harbour suspicions of improper conduct...” said Judge Chamberlain in last month’s judgment. 

We agree. If they have nothing to hide why won’t they publish?

Update 9

Good Law Project

Feb. 19, 2021

We’ve won

The High Court has ruled “The Secretary of State acted unlawfully by failing to comply with the Transparency Policy” and that “there is now no dispute that, in a substantial number of cases, the Secretary of State breached his legal obligation to publish Contract Award Notices within 30 days of the award of contracts.” We have won the judicial review we brought alongside Debbie Abrahams MP, Caroline Lucas MP, and Layla Moran MP.

In handing down the judgment, Judge Chamberlain brought into sharp focus why this case was so important. “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.

The Judge went on to say that if Government had complied with its legal obligations we “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.” When Government eschews transparency, it evades accountability.

Government’s behaviour came under criticism in the judgment. If it had admitted to being in breach of the law when we first raised our concerns, it would have never been necessary to take this judicial review to its conclusion. Instead, they chose a path of obfuscation, racking up over £200,000 of legal costs as a result.  

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.

This judgment, which can be found here, is 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. We have now written to the Secretary of State for Health and Social Care detailing what needs to be done to improve procurement processes and ensure value for British taxpayers.

But for now, we can take a moment to celebrate this win. Thank you, as ever, for all your support.   

Update 8

Good Law Project

Feb. 5, 2021

Government in breach of the law

Yesterday in open court, lawyers acting on behalf of Government admitted it had breached the law by persistently failing to publish details of COVID-19 contracts. 

Not only were they knowingly in breach of the law, but explosive emails read to the High Court reveal that Number 10 asked civil servants to delay publishing PPE contracts even further in order to suit their news agenda. Government openly breaching the law for their own political expediency may no longer surprise us, but it is a worrying sign indeed for our democracy. 

As our legal team took Government to task for its ‘wholesale failure to comply with obligations of transparency’ it became evident that no one, including Government’s own witness, seemed to know who was responsible for ensuring legal obligations were met. Indeed, Government only sought to rectify the situation after Good Law Project and cross-party MPs Caroline Lucas, Debbie Abrahams and Layla Moran initiated legal proceedings. Without our judicial review, who knows how many contracts would still remain unpublished. 

As Government has admitted breaching the law, its chosen line of defence is that we do not have ‘standing’ to bring this judicial review. Standing is the legal stake or interest that an individual has in a dispute that entitles them to bring a legal challenge. Government argues only ‘economic operators’ have standing to bring this case. In other words, businesses who lost out because of Government’s breach of the law. But what business would speak out, given fear of future reprisals and loss of earnings? And what about the standing of those of us who believe scrutiny of public spending is vital to hold Government to account and keep those in power honest?

We believe that the decision in this case may ultimately rest on the issue of standing and we hope to have the judgment soon. A full summary of the hearing can be found here and we will update you on the judgment as soon as we receive it.

Thank you for your support of this legal challenge.

Update 7

Good Law Project

Feb. 2, 2021

Buying injustice

Tomorrow sees our legal challenge for Government’s failure to disclose details of COVID-19-related contracts. The case is being brought by Good Law Project along with a cross-party group of MPs - Caroline Lucas (Green), Debbie Abrahams (Labour) and Layla Moran (LibDem).

Ahead of the hearing, Government has disclosed how much public money it has spent defending its conduct. It makes for an eye-watering read.

Government has used a huge legal team - nine solicitors and five barristers - to prepare for a one day hearing with just one witness. And its costs stand at a staggering £207,784. A private litigant doesn’t have the bulk purchasing power of the state and its costs are often higher. But Good Law Project’s costs stand at just £81,854. And that £207,784 has been spent defending what Government has explicitly admitted to be persistent and unlawful conduct.

We have managed, with your help, to crowdfund £100,466. But you don’t need a maths degree to see the problem.

Given the continuing super-sized costs bills it’s hard not to wonder whether there is a correlation between how politically sensitive a legal challenge is and how much Government spends. In our judicial review over the award of huge PPE contracts to weird counterparties, it has estimated its costs at an enormous £1 million. This is a sum unprecedented in our lawyers’ experience of judicial review proceedings. It would be hugely worrying if Government was incurring huge costs to try and scare off legitimate public interest challenges.

It was only when we and our fellow co-claimants began to highlight Government’s unlawful failure to publish COVID-19-related contracts that senior officials began to seek to rectify the situation. Our legal pressure is working and we do not intend to back down now.


Update 6

Good Law Project

Jan. 20, 2021

They cannot evade scrutiny in the courts

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.

Update 5

Good Law Project

Jan. 7, 2021

Government has filed its Detailed Grounds of Resistance

We have received the Government’s Detailed Grounds of Resistance and accompanying disclosure and witness statements. We are sharing the former and will share the latter when we can after we’ve had our hearing. The hearing is still scheduled for 3 February and we will of course keep you posted.

Update 4

Good Law Project

Nov. 18, 2020

We have a hearing date

I am writing to let you all know that the hearing of this judicial review - about the failure of the Government to adhere to its obligations to be transparent about the contracts it is entering into, and with whom, and on what terms, including those in its infamous VIP lane - will take place on 3 February 2021. 

Update 3

Good Law Project

Nov. 12, 2020

Permission granted - we’re going to court

We are pleased to announce that our judicial review to challenge the Government’s persistent failure to publish COVID-19 contracts as required by law has been granted permission by the court. The hearing is scheduled for mid-January 2021.

Despite Government’s attempt to argue that we had no standing to bring the claim, the Judge agreed there is an important public interest in securing that Government abides by the law and its own public procurement policy. 

Government is required by law to publish contract details within 30 days of the award. But the average length of time taken to publish COVID-19 contracts now stands at a remarkable 78 days, with over £4billion worth of contracts totally unaccounted for.

The Government’s repeated refusal to come clean has left us - along with cross-party MPs Debbie Abrahams, Caroline Lucas and Layla Moran - no option but to compel the Government to come clean through the courts.

It is only with your support that we can continue to hold Government to account. 

Thank you. 

Update 2

Good Law Project

Nov. 9, 2020

The transparency gap grows

Our challenge to Government’s decision to hide COVID-19 spending has led it to disclose that the Department of Health has handed £17 billion worth of COVID-19 contracts to private companies since April. Fresh analysis by Tussell reveals Government has failed to publish details of £4.4 billion of these contracts.

In October we revealed £3 billion of spending was unaccounted for. A month on, this figure has jumped.

Government is required by law to publish contract details within 30 days of the award. But the average length of time taken to come clean about COVID-19 contracts now stands at a remarkable 78 days. These persistent failures to adhere to the law make it hard for MPs and journalists to perform their vital scrutiny function and harder still for lawyers to challenge procurement choices.

The contracts we do know about are alarming. Take Ayanda Capital, a politically connected firm given a £252 million contract to supply facemasks, the majority of which could not be used by the NHS. Ayanda was guided through the process by the Cabinet Office and enjoyed staggering margins compared to the prices paid to others. 

According to Government our claim for transparency in accordance with UK law “should not be used for the transparent purpose of trying to use the judicial process to embarrass the government at a time of national crisis“. 

That this Government views transparency law as something which “embarrasses” them tells you everything you need to know about their disastrous COVID-19 response. 

That’s why we – along with cross-party MPs Debbie Abrahams, Caroline Lucas and Layla Moran – are suing for answers. We await permission to proceed from the court.

It is only with your support that we can continue to hold Government to account. 

Thank you. 

Update 1

Good Law Project

Oct. 10, 2020

We have issued judicial review proceedings

We have now issued judicial review proceedings over the Government’s persistent failure to publish details of contracts within 30 days of their award. We are working with a cross-party group of MPs, Debbie Abrahams, Layla Moran and Caroline Lucas. 

The law can be a powerful tool for accountability. We intend to use it to keep those in power honest. Thank you for your support. 

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