Court finds that Matt Hancock broke the law

Credit: Kirsty O’Connor/PA

Health secretary Matt Hancock acted unlawfully by failing to ensure his department published details of contracts it signed during the coronavirus pandemic, the High Court has found.

Hancock had breached his legal obligation to publish contract documents within 30 days of them being signed “in a substantial number of cases”, Mr Justice Chamberlain said.

The Department of Health and Social Care had failed to comply with government guidance on transparency around procurement, despite having spent “vast” amounts of money on consultancy and goods to help deal with the coronavirus crisis, he said.

The department has spent hundreds of millions of pounds over the last year on PPE, project management and consultancy support and other goods and services. Some of the contracts have been awarded outside the normal tendering rules under emergency procurement measures put in place to help departments cope with the coronavirus crisis.

Included among the contracts that have been directly awarded or extended beyond what would normally be allowed are a number of technology-related deals.

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Departments are required to publish contract award notices of deals worth more than £120,000 within 30 days of being awarded under government transparency guidelines.

But in his ruling on the case, brought by the campaign group the Good Law Project and three MPs, Chamberlain said there was “no dispute” Hancock failed to do so for several contracts.

“There is also no dispute that the secretary of state failed to publish redacted contracts in accordance with the transparency policy,” he said. “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.”

He said transparency was also important to enable parliament and watchdogs like the National Audit Office to scrutinise how money was being spent, and so competitor firms could see if deals had been awarded fairly.

The judge acknowledged that DHSC had been dealing with “unprecedented” circumstances and had focused its attention on procuring equipment and services it thought were “necessary to save lives”.

But he said that reasoning was “an excuse, not a justification” for the department’s failure to be transparent about its coronavirus contracts.

The Good Law Project called the judgement 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,” the group added.

Some significant technology deals awarded by the DHSC demonstrate that tardy publication of procurement data is far from uncommon.

Deals covering WiFi signal-boosting devices for mobile coronavirus testing units and the supply of 16,000 iPhones to the Test and Trace scheme were both published comfortably beyond the 30-day limit. A consultancy deal signed in May that saw Amazon Web Services employees paid an average of £1,300 a day took almost nine months to be made public.

The court ruling comes as coronavirus has sharpened scrutiny of the way contracts for work related to the pandemic have been awarded.

Last week, the Labour Party demanded the government halt its emergency procurement measures after Boris Johnson’s former top political adviser, Dominic Cummings, said he had “expected” his friends’ company to win a contract worth £564,393 without a formal tender process.

And the Guardian revealed yesterday that Hancock’s former neighbour who won contracts worth £30m to produce coronavirus test vials was under investigation by the Medicines and Healthcare products Regulatory Agency.

The MHRA launched the probe because Alex Bourne’s company, Hinpack, made plastic cups and takeaway boxes and had no prior experience in the medical devices industry. Graeme Tunbridge, the regulator’s director of devices, said it would take “appropriate action as necessary”.

Responding to this weekend’s court ruling, Hancock said it was not the case that he had refused to publish details of contracts, but that it was a matter of “delayed paperwork”. Publication had been delayed by around two weeks on average, he said.

“That’s what the court found and I think any secretary of state in my position would absolutely back my officials in doing the right thing – saving lives,” Hancock told Sky News. “Some of the paperwork got a little bit delayed and I’m absolutely backing my team who did a phenomenal job in incredibly difficult circumstances.  All these rules – we followed them absolutely with transparency.”

A DHSC spokesperson said the government had been forced to award contracts “at speed” to procure equipment to protect health and social care staff.

“We fully recognise the importance of transparency in the award of public contracts and continue to publish information about contracts awarded as soon as possible,” they said.