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CO/3610/2020
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
B E T W E E N :
THE QUEEN
on the application of
(1) GOOD LAW PROJECT LIMITED
(2) DEBBIE ABRAHAMS MP
(3) CAROLINE LUCAS MP
(4) LAYLA MORAN MP
Claimants
-and- SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE
Defendant
DEFENDANT’S SKELETON ARGUMENT
For hearing: 3 February 2021
References to the Hearing Bundle take the form [Tab/Page]. References to the Authorities Bundle
take the form [Auth/Page]
Recommended pre-reading (time estimate: 5 hours):
• Statement of Facts and Grounds [2/9]
• Detailed Grounds of Resistance [5/52]
• Witness statements:
Claimants
First witness statement of Jolyon Maugham (“Maugham/1”) [18/2]
First witness statement of Debbie Abrahams MP (“Abrahams/1”) [19/10]
First witness statement of Caroline Lucas MP (“Lucas/1”) [20/12]
First witness statement of Layla Moran MP (“Moran/1”) [21/14]
Second witness statement of Jolyon Maugham (“Maugham/2”) [24/518]
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Defendant
First witness statement of Rick Webb (“Webb/1”) [22/16]
Second witness statement of Rick Webb (“Webb/2”) [23/185]
Third witness statement of Rick Webb (“Webb/3”) (served herewith)
• Claimants’ application for amendment [7/71]
• Defendant’s letter of 22 January 2021 responding the reply evidence and Claimants’
application for amendment [16/142]
• Skeleton arguments of Claimants and Defendant
A. Introduction
1. This is the skeleton argument of the Defendant (the “Secretary of State”) for the hearing of
the Claimants’ application for judicial review, issued on 7 October 2020, by way of which
they seek to challenge:
a. an alleged failure on the part of the Secretary of State to comply with his duty under
regulation 50 of the Public Contracts Regulations 2015 (as amended) (“PCR 2015”)
to publish contract award notices (“CANs”) in relation to contracts for goods and
services which he has awarded and into which he has entered following the onset of
the COVID-19 pandemic; and
b. an alleged failure on the part of the Secretary of State to comply with the published
policy of the Government to publish alongside the CANs the provisions of contracts he
has entered into which have a value over £10,000.
2. The Claimants have advanced four grounds of challenge in their Statement of Facts and Grounds
(“SFoG”) [2/9], as follows:1
a. That the Secretary of State has admitted that he has failed to comply with the mandatory
duty placed upon him by regulation 50 PCR 2015, to which there is no available legal
justification (“Ground 1”) (SoFG, §33); [2/23]
1 The Defendant read SoFG, §§35-36 as alleging two distinct grounds and its Summary Grounds and Detailed
Grounds were both pleaded on that basis. It is now appears (see the Claimants’ Skeleton Argument, §52, footnote
7) that those two paragraphs are purportedly intended to comprise one ground. They continue to be treated
separately by the Defendant (as they were by the learned Judge in considering the question of permission), as they
advance two distinct allegations. However, insofar as Ground 4 arises out of Ground 3, it follows that without
succeeding on what the Defendant identifies as Ground 3, the Claimants’ case on its Ground 4 must also fail.
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b. That the Secretary of State has failed to comply with the duty placed upon him by the
Transparency Policy and Transparency Principles to publish the terms of the contracts
he has awarded, for which there is no legal justification (“Ground 2”) (SoFG, §34);
[2/23]
c. That a public authority should act consistently with a relevant published policy and not
by reference to an inconsistent, unpublished policy or direction (“Ground 3”) (SoFG,
§35); [2/23] and
d. That, contrary to the common law duty of transparency and unlawfully, the Secretary
of State has made and approved a conscious decision to “de-prioritise” compliance with
regulation 50 PCR 2015 and with the Transparency Policy and Transparency Principles
(“Ground 4”) (SoFG, §36). [2/24]
3. As explained further below, when serving reply evidence on January 2021, the Claimants have
sought to amend their SoFG so as to expand the scope of Ground 1 above to include a claim for
alleged breach of regulation 108 PCR 2015. [7/71] The proposed amendment is resisted.
[16/142]
4. The Secretary of State’s position in summary is that:
a. The Claimants lack the necessary standing to bring the Claim in respect of the matters
which they seek to challenge;
b. In circumstances where the Secretary of State has now complied with his obligations
to send for publication CANs 100% of all contracts that were entered into by the
Department for Health and Social Care (“DHSC”) during the COVID-19 pandemic as
at the date of issue of the proceedings and which fall within the scope of Regulation 50
PCR 2015, the Claim does and can serve no useful purpose. The Secretary of State has
further arranged publication of more than 97% of notices on Contracts Finder and
nearly 85% of actual contracts where that is recommended under the Transparency
Policy;
c. There has been no policy of “de-prioritisation”, whether as alleged or at all;