‘Dismal’ failure by Government to publish Covid-19 contracts worth billions, High Court told

There was a “dismal” failure by Government to publish details of coronavirus-related contracts collectively worth billions of pounds, the High Court has heard.

The Good Law Project is bringing a legal challenge against the Department of Health and Social Care (DHSC), arguing it has repeatedly failed in its duty to disclose details and award notices for contracts entered into during the pandemic.

It claims this “wholesale” failure is unlawful and in breach of the Government’s own transparency rules.

The DHSC is opposing the challenge.

At a remote hearing on Wednesday, lawyers for the Good Law Project, which is bringing its claim with three MPs – Labour’s Debbie Abrahams, Green MP Caroline Lucas and Liberal Democrat MP Layla Moran – argued transparency in awarding contracts is “hugely significant” in allowing scrutiny of “government stewardship of public funds”.

Jason Coppel QC, barrister for the not-for-profit organisation, told Mr Justice Chamberlain: “This is a challenge to the defendant’s wholesale failure to comply with statutory and common law obligations of transparency in relation to the award of public contracts during the pandemic.

“These transparency obligations to publish the details of contracts awarded and to publish the contracts themselves are hugely significant in enabling public and parliamentary scrutiny of government stewardship of public funds.”

Mr Coppel argued these obligations are “all the more important in the unusual circumstances of the pandemic” because the DHSC has responded to the pandemic by awarding “many hundreds of contracts worth many billions of pounds” without advertisement.

He went on to say evidence shows that between April and September last year, “the defendant’s compliance with its transparency obligations was dismal” and this was for reasons including a “lack of resources allocated to compliance” which was indicative of “a lack of priority” being given by the DHSC to it.

Mr Coppel told the court that from September onwards, there was a “concerted effort” by the DHSC to mitigate a “failure to comply” by the publication of details of contracts on an EU portal, and a “less concerted” effort to meet its domestic obligations.

In documents before the court, Mr Coppel argued the DHSC has failed to comply with its duties under the Public Contracts Regulations 2015, to publish contract award notices in respect of contracts for good and services awarded following the start of the pandemic, and to comply with a Government policy to publish details of contracts worth more than £10,000.

The regulations mean award notices should be published within 30 days on an EU portal, the barrister claimed, adding they are also required to be published on a centralised, searchable, government “contracts finder” database.

He also argued the DHSC has failed to comply with its duty under the Government’s transparency policy on tenders and contracts to publish the terms of the contracts awarded.

The court papers claim that the DHSC has said that in the 2020/21 financial year, it has spent more than £17 billion on Covid-19-related contracts, adding that analysis carried out for the Good Law Project calculated that as at November 2, award notices representing £10.6 billion of those contracts had been published.

The documents say that in correspondence from last month, the DHSC had asserted that “all 592 contracts awarded earlier than within the past 30 days for which a CAN (contract award notice) was required to be published had now been published”, but claims this does not include executive agencies, or contracts that were awarded and then cancelled.

Mr Coppel says in the papers: “The need for transparency and accountability is not reduced during a public health emergency; indeed, it is all the more important that decision-making during difficult times is as open and accountable as at any other time because it is during such emergencies that the boundaries of good administration, and the law, may be most tested.

“In the present context, that is all the more so where enormous amounts of money were being spent and many of the defendant’s contracts were being awarded without open competition, to operators with no track record in the relevant area, some of whom were benefitting from ‘VIP’ treatment.”

The hearing is due to last for one day.

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