Serious Cock Up By Health Secretary

Lewisham residents will know that the Secretary of State for Health can act unlawfully. We remember the Lewisham Hospital closure attempt when Jeremy Hunt’s hospital cuts were ruled illegal. Now we have a serious, costly cock up by the current incumbent.

The Secretary of State for Health, Matt Hancock acted unlawfully said Mr Justice Chamberlain in the High Court in a case concerning competition and contract procurement rules. The contracts included personal protective equipment, PPE, needed for the Covid 19 pandemic response. Reports estimate that the value of these contracts run into “hundreds of millions of pounds.” The court judgement mentions contracts in the billions.

The legal challenge was brought by the Good Law Project described as a not for profit organisation specialising in governance. The ruling says that the Government acted unlawfully by failing to comply with their 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.” In response to the Judgement, Jolyon Maugham QC, Director, 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?”

The Government had argued that this was about “technical” breaches of the legal regulations on public contracts that allow agreements to be entered into without tender for reasons of extreme urgency brought about by unforeseen events. But regulation 50 of the public contracts regulations specifies that a contract award notice (CAN) must be published not later than 30 days after the contract award.

Ignorance by officials of the Transparency Policy, was no defence when the Judge ruled that “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.”

According to the BMJ, this is important because publication is designed to “serve a vital public function and that function was no less important during a pandemic,” Mr Justice Chamberlain said. “The secretary of state spent vast quantities of public money on pandemic related procurement 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.”

Compliance with the regulations would have allowed the Good Law Project “to scrutinise CANs and contract provisions, ask questions about them and raise any issues with oversight bodies such as the National Audit Office or via MPs in Parliament.”

The National Audit Office had said: “While we recognise that these were exceptional circumstances, there are standards that the public sector will always need to apply if it is to maintain public trust.”

Jolyon Maugham QC, Director, Good Law Projected concluded by saying: “This 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.

In the House of Commons on 24th February, the Shadow Health Minister, Justin Madders, MP said:

“Why has the Secretary of State not come to Parliament to explain himself? Is breaking the law such a common occurrence in Government nowadays that it does not warrant an explanation from those responsible? The Government’s approach to procurement during the pandemic has been marred by a toxic mix of misspending and cronyism. We all understand that the Department was and is dealing with many pressing issues, but transparency is important, and accountability matters. Of course, we need to remember why there was such a rush to get PPE in the first place—it was because the Government had ignored the warnings and allowed stockpiles to run down. The pandemic has been used too often as an excuse for standards to slip, but it really should not need saying that transparency goes hand in hand with good government.”

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