The Administrative Court has handed down an important judgment relating to the high-profile concerns about the Secretary of State for Health and Social Care’s compliance during the pandemic with procurement law. It held that the Secretary of State has in a significant number of cases failed to comply with his legal obligations to ensure transparency in procurement decision-making.
R (Good Law Project & others) v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin) involved a claim for judicial review brought by the governance and transparency campaigning organisation, the Good Law Project, with three Members of Parliament, relating to the procurement of contracts by the Secretary of State relating to COVID-19. It alleged that the Secretary of State had routinely failed to comply with his obligation under regulation 50 of the Public Contracts Regulations 2015 to send for publication a contract award notice within 30 days of a contract award, and with the Government’s policy commitments to publish the terms of Government contracts worth more than £10,000. Only in his skeleton argument for the hearing, did the Secretary of State expressly admit that he had failed to comply with regulation 50, and that he had failed to do so for around half of the COVID-19 contracts awarded to which regulation 50 applied.
The Secretary of State denied that he was under any legal obligation to comply with the Government’s published policy that contracts procured under the Regulations should themselves be published within 20 days of the award. Chamberlain J held that the Secretary of State was legally obliged to comply with his policy, having taken no conscious decision that there was a good reason not to be bound by it, and that that policy had been breached in a significant (but unknown) number of instances.
Chamberlain J rejected the Secretary of State’s arguments that no relief should be granted because publication had, by the date of the hearing, occurred in almost all instances. He held that there was no reason to depart from the normal principle that a party who has established unlawful conduct is entitled to at least declaratory relief recognising that. The judgment reiterates the considerable public interest in transparency in public contracting, particularly where contracts have been awarded without an open advertised tender process.
The Court also dealt in detail with an objection raised by the Secretary of State to the standing of the Claimants to seek to enforce the obligations imposed by the Regulations. Chamberlain J held that public interest claims of the sort brought could be advanced by non-governmental organisations such as the Good Law Project, particularly in circumstances where there was no better-placed alternative challenger (such as an economic operator) and where they sought to further aims of the legislative scheme. The Court went on to hold that it was unnecessary for the additional Claimants also to have standing where the Good Law Project did. The judgment is a significant contribution to the law on standing, particularly in the context of the procurement framework.
Jason Coppel KC and Christopher Knight acted for the Claimants, instructed by Deighton Pierce Glynn. Jason Coppel KC also acts in various challenges currently before the courts brought by the Good Law Project to individual contract awards identified by the Good Law Project’s investigative work.
The judgment may be read here.
