Secretary of State acted unlawfully by failing to comply with the Transparency Policy

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.

Jolyon Maugham QC
Director of Good Law Project
https://action.goodlawproject.org