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Neutral Citation Number: [2021] EWHC 346 (Admin)
Case No: CO/3610/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 18/02/2021
Before :
MR JUSTICE CHAMBERLAIN
- - - - - - - - - - - - - - - - - - - - -
Between :
THE QUEEN
on application of
(1) GOOD LAW PROJECT LIMITED
(2) DEBBIE ABRAHAMS MP
(3) CAROLINE LUCAS MP
(4) LAYLA MORAN MP Claimant
- and –
SECRETARY OF STATE FOR HEALTH AND
SOCIAL CARE Defendant
- - - - - - - - - - - - - - - - - - - - -
JASON COPPEL QC and CHRISTOPHER KNIGHT (instructed by Deighton Pierce
Glynn) for the Claimants
PHILIP MOSER QC, EWAN WEST and SIAN MCGIBBON (instructed by Government
Legal Department) for the Defendant
Hearing dates: 3 February 2021
- - - - - - - - - - - - - - - - - - - - -
Approved Judgment
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MR JUSTICE CHAMBERLAIN:
Introduction
1 The First Claimant, the Good Law Project, is a not-for-profit organisation which exists
to bring and support public interest litigation within its areas of interest. One of these is
“governance”. Under this broad heading, it has sought to challenge alleged failures by
the Secretary of State to comply with procurement law and policy in relation to contracts
for goods and services awarded following the onset of the COVID-19 pandemic. The
Second, Third and Fourth Claimants are opposition Members of Parliament for,
respectively, Oldham East & Saddleworth, Brighton Pavilion and Oxford West &
Abingdon.
2 The present claim was filed on 7 October 2020 against the Secretary of State for Health
and Social Care. It does not challenge any individual procurement decision. Its original
target was the Secretary of State’s failure to comply with:
(a) reg. 50 of the Public Contracts Regulations 2015 (SI 2015/102: “the PCR 2015”),
which require him to send for publication a contract award notice (“CAN”) not
later than 30 days after the award of a contract with a value exceeding the
applicable limit; and
(b) the policy and principles set out in Crown Commercial Service documents entitled
Publication of Central Government Tenders and Contracts: Central Government
Transparency Guidance Note (November 2017) (“the Transparency Policy”) and
Procurement Policy Note – Update to Transparency Principles (PPN 01/17,
February 2017) (“the Transparency Principles”), which require publication of the
provisions of any contract with a value over £10,000.
3 The Claimants added at para. 36 of the Statement of Facts and Grounds that it was
“apparent” that the Secretary of State, whether personally or though his officials, had
“made and approved a conscious decision to de-prioritise compliance with regulation 50
and with the Transparency Policy and Principles”. They refer to this as the “de- prioritisation policy”.
4 By an application on 11 January 2021, the Claimants sought to amend the Statement of
Facts and Grounds (“SFG”) to allege that the Secretary of State had also systematically
failed to comply with reg. 108 of the PCR 2015. That imposes an obligation, subject to
specified exceptions, to publish a shorter form of the CAN on the Government’s
“Contracts Finder” website. By reg. 108(4) this must be done “within a reasonable time”.
In 2015, the Crown Commercial Service issued a document entitled Guidance on the new
transparency requirements for publishing on Contracts Finder (“the reg. 108 Guidance”)
which “recommended” that the required information be published no later than 90
calendar days after the contract award date. The Claimants say that the Secretary of State
has failed to meet this recommended timescale in a substantial number of cases and that,
given that there has been no reasoned decision to depart from it, the failure is unlawful.
5 The Secretary of State submits that permission to amend to plead the breach of reg. 108
should be refused because there is no reason why the point could not have been pleaded
from the outset and because it would be unfair to allow a new point to be pleaded so late.
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In relation to the remainder of the claim, he points out that the procurement exercises to
which the claim relates took place in extraordinary and unprecedented circumstances.
The pandemic made it necessary to procure many times more goods and services than
would normally be required and in much shorter timescales. A large number of extra
members of staff were required. Some were not familiar with procurement processes.
The defaults relied upon by the Claimants must be seen in that context.
6 The Secretary of State’s case may be summarised as follows. The Claimants lack the
necessary standing to bring this claim. The Secretary of State has now complied with the
obligation to publish CANs in 100% of cases, the obligation to publish reg. 108
information in 97% of cases and the policy of publishing the provisions of contracts in
85% of cases; therefore the proceedings serve no useful purpose. There is no “de- prioritisation policy”, and there never has been. Any remedy the Court could give
(including declaratory relief) would be academic and of no practical impact, because the
Secretary of State has now “materially complied with his obligations”. The outcome for
the Claimants would not have been substantially different if the conduct complained of
had not occurred. Relief should therefore be refused under s. 31(2A) of the Senior Courts
Act 1981 (“the SCA 1981”).
7 I have re-ordered the issues as follows:
(a) Do the Claimants or any of them have standing to bring this challenge?
(b) Should the Claimants be permitted to amend the Claim Form and Statement of
Facts and Grounds to plead the breach of reg. 108?
(c) Did the Secretary of State have a policy of de-prioritising compliance with his
transparency obligations?
(d) Did the Secretary of State act unlawfully by failing to comply with:
(i) the Transparency Policy and Transparency Principles; and/or
(ii) reg. 108 (if permission to amend is granted – see (b) above)?
(e) Should the Court grant declaratory and/or mandatory relief in respect of the
Secretary of State’s failure to comply with:
(i) reg. 50 (where breach is now admitted); and/or
(ii) the Transparency Policy and Transparency Principles (if the failure was
unlawful – see (d)(i) above); and/or
(iii) reg. 108 (if permission to amend is granted – see (b) above – and the failure
was unlawful – see (d)(ii) above)?
Applicable law and policy
8 Part 2 of the PCR 2015 implemented the UK’s obligations under Council Directive
2014/24/EU (“the Public Contracts Directive”). Part 2 of the PCR 2015 applies to all
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contracts whose value exceeds the thresholds in reg. 5. For public supply contracts and
public service contracts awarded by central government authorities, the threshold is
£122,976.
9 Regulation 18 is headed “Principles of procurement”. Regulation 18(1) provides:
“Contracting authorities shall treat economic operators equally and without
discrimination and shall act in a transparent and proportionate manner.”
10 Regulation 26 provides that public contracts are to be awarded only if a call for
competition has been published, except where reg. 32 permits the contracting authority
to apply a negotiated procedure without prior publication.
11 There are various types of competitive procedure. The details do not matter for present
purposes. What does matter is that reg. 32(2)(c) allows a contracting authority to use the
“negotiated procedure without prior publication” for, inter alia, public supply contracts
and public service contracts “insofar as it is strictly necessary where, for reasons of
extreme urgency brought about by events unforeseen by the contracting authority, the
time limits for the open or restricted procedures or competitive procedures with
negotiation cannot be complied with”. Many of the contracts to which this claim relates
were concluded under this provision. This claim is not concerned with whether that was
lawful. The Claimants, however, say that the large number of contracts concluded under
the reg. 32 procedure is relevant because the absence of prior publication means that the
public will have no way of knowing of the existence of a contract unless and until a CAN
is published.
12 Regulation 50 provides insofar as material as follows:
“(1) Not later than 30 days after the award of a contract or the conclusion of
a framework agreement, following the decision to award or conclude it,
contracting authorities shall send for publication a contract award notice on
the results of the procurement procedure.
(2) Such notices shall contain the information set out in part D of Annex 5 to
the Public Contracts Directive and shall be sent for publication in accordance
with regulation 51.
...
(6) Certain information on the award of the contract or the conclusion of the
framework agreement may be withheld from publication where its release—
(a) would impede law enforcement or would otherwise be contrary to the
public interest,
(b) would prejudice the legitimate commercial interests of a particular
economic operator, whether public or private, or
(c) might prejudice fair competition between economic operators.”
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13 The form of the CAN is prescribed in Part D of Annex 5 of the Public Contracts Directive.
The CAN had to be sent to the EU Publications Office, which would publish it on the EU
Tenders Electronic Daily or “TED” portal. Since the end of the transition period on 31
December 2020, the Regulations continue to apply as “retained EU” law within the
meaning of s. 2 of the European Union (Withdrawal) Act 2018, with modifications.
Publication is now on the UK e-notification service: see the Public Procurement
(Amendment etc.) (EU Exit) Regulations 2020 (SI 2020/1319). Both the TED portal and
the e-notification service include searchable databases.
14 There is a dispute between the Claimants and the Secretary of State about when the 30-
day period begins to run. The Claimants say it is when the contracting authority decides
to award the contract, not the date when the contract is concluded. The Secretary of State
says it is the latter date. The Claimants respond that, even on that basis, the Secretary of
State has breached his obligation to comply with reg. 50 in a widespread and extensive
way. That being so, they invite me to measure compliance assuming the correctness of
the Secretary of State’s construction. I have done so. The parties agree that I do not,
therefore, need to determine which of the two constructions is correct. That issue can be
left to be decided in a case where it matters.
15 The parties also agree that there is no exception to the obligation imposed by reg. 50(1),
although reg. 50(6) may permit the withholding of certain information from the CAN in
the circumstances specified. There is no dispute that the workload or resources of the
authority provide no justification for non-compliance with the duty in reg. 50(1). Nor, by
the same token, does the unprecedented public health emergency with which the
Secretary of State was and is faced.
16 Part 3 of the PCR 2015 deals with remedies. It includes Chapter 6, headed “Applications
to the Court”. Regulation 89 provides as follows:
“(1) This regulation applies to the obligation on a contracting authority to
comply with—
(a) the provisions of Parts 2 and 3; and
(b) any enforceable EU obligation in the field of public procurement in
respect of a contract or design contest falling within the scope of Part 2.
(2) That obligation is a duty owed to an economic operator from the United
Kingdom or from another EEA state.”
17 Regulation 90 is headed “Duty owed to economic operators from certain other states”
and imposes the same duty in favour of economic operators from states party to the
plurilateral agreement of Government Procurement, an agreement made under the aegis
of the World Trade Organisation.
18 Regulation 91 is headed “Enforcement of duties through the Court” and provides as
follows:
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“(1) A breach of the duty owed in accordance with regulation 89 or 90 is
actionable by any economic operator which, in consequence, suffers, or risks
suffering, loss or damage.
(2) Proceedings for that purpose must be started in the High Court, and
regulations 92 to 104 apply to such proceedings.”
19 Regulations 92-104 make procedural and substantive provision for claims by economic
operators for breach of regs 89 or 90.
20 Chapter 7 of the PCR 2015, in Part 4, applies to any contract whose value exceeds the
thresholds in Part 2 (subject to exceptions not relevant here): reg. 105(1). It imposes
additional obligations that do not derive from EU law, but further the objective of
transparency. Regulation 108 applies when a contracting authority sends a CAN for
publication or awards a contract based on a framework agreement: reg. 108(1). In those
circumstances, the authority is obliged to publish on Contracts Finder some limited
information about the contract: “(a) the name of the contractor; (b) the date on which the
contract was entered into; (c) the value of the contract”: reg. 108(2). That obligation is
subject to a power to withhold information where its release “(a) would impede law
enforcement or would otherwise be contrary to the public interest, (b) would prejudice
the legitimate commercial interests of a particular economic operator, whether public or
private, or (c) might prejudice fair competition between economic operators”: reg.
108(3).
21 Regulation 108(4) and (6) provide:
“(4) Contracting authorities shall comply with paragraph (2) within a
reasonable time.
...
(6) In complying with this regulation, contracting authorities shall have
regard to any guidance issued by the Minister for the Cabinet Office on—
(a) the form and manner in which the information is to be published on
Contracts Finder; and
(b) what is a reasonable time... for the purposes of paragraph (4).”
22 The Transparency Policy provides relevantly as follows:
“2.3 In addition to the legislative requirements, there are policy commitments
to publish the associated tender and contract documents in full on Contracts
Finder. This applies to all contracts above £10,000, including call-offs from
framework agreements. It is your responsibility to publish any call off
contracts that you award above this threshold.
2.4 Documents should be attached to the relevant notice:
a. Tender documents should be attached to the opportunity notice.
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b. Contract documents should be attached to the award notice.
c. Where an opportunity was not advertised, for example a framework
call-off, the tender documents should also be attached to the award
notice.”
23 At §5.1 there is further detail about what must be published:
“You are expected to publish contracts in full. For the purpose of this
requirement, as a minimum, this must include the following (where relevant):
• Specification
• Terms and Conditions (Ts & Cs)
• Associated Schedules (which may include the winning tenderer’s bid)
• Where contract specifications or associated schedules contain various
diagrams (for example, in some construction contracts), you should
publish these where practical (taking into account the any necessary
exemptions as set out in section 6) and where the diagrams are already
in an electronic format that is likely to be accessible to the public (e.g.
word or pdf).”
24 At §9.1 it is “advised” that contracts should be published within 20 days following the
award of the contract or, if a “standstill period” applies, within 20 days following the end
of that period. (The standstill period is the period between the notification of the contract
award decision and the final contract conclusion, during which time disappointed
tenderers can challenge the decision. In the case of contracts awarded under reg. 32,
however, there is no standstill period.)
25 The Transparency Principles explain the rationale for transparency in §1:
“Transparency and accountability of public service delivery data and
information builds public trust and confidence in public services. It enables
citizens to see how taxpayers’ money is being spent; and allows the
performance of public services to be independently scrutinised. It also
supports the functioning of competitive, innovative and open markets by
providing all businesses with information about public sector purchasing and
service providers’ performance.”
26 In the context of the pandemic, the Cabinet Office published a further document in March
2020 entitled Procurement Policy Note 01/20 – Responding to COVID-19, which noted
that contracting authorities may be permitted to make direct awards under reg. 32(2)(c)
in cases of extreme urgency, but also advised as follows:
“You should ensure you keep proper records of decisions and actions on
individual contracts, as this could mitigate against the risk of a successful
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allegation” that there was an unpublished policy not to publish COVID-related contracts
within 30 days as required by reg. 50. They then said this:
“DHSC officials are continuing to work hard to publish CANs including for
coronavirus-related contracts, and all the information your clients seek will
be published as soon as that is practical. We cannot at this stage commit to a
precise timeframe, but publication will be complete before any judicial
review proceedings attempting to compel publication could take place.”
35 GLD explained why publication of CANs was not the straightforward matter the
Claimants assumed it to be. They denied that the Secretary of State’s omission to publish
all COVID-related CANs so far had prevented the Government from being accountable
to Parliament and the public for the relevant expenditure, pointing to a review by the
National Audit Office of the Government’s procurement strategy during the pandemic,
which was due to report in late 2020, and an investigation by the Public Accounts
Committee, which would involve scrutiny of many of the same contracts for which the
Claimants sought information. Reference was made to the 3,949 written questions to and
answers from departmental Ministers since 1 March 2020, 121 of which related to
procurement.
36 GLD responded to the threatened claim as follows:
“The Secretary of State does not dispute the importance of the transparency
obligations to which DHSC is subject in relation to the award of public
contracts. That is precisely why DHSC is currently in the process of
publishing CANs for all the contracts that have been entered into during the
pandemic. While it is acknowledged that, in the extraordinary circumstances
of the current crisis, there have been technical breaches of Regulation 50 of
the PCR, there is no unlawful policy of non-publication and all the
information whose publication is the relief sought in your client’s proposed
claim is already going to be published in due course.”
37 GLD went on to say that the threatened claim would serve no useful purpose, as “an order
mandating the DHSC to continue doing what it is already doing (and it is likely will have
done by the date of any order) would be nugatory” (emphasis in original). They went
further, saying that the claim would be counter-productive:
“By requiring DHSC to answer a series of highly detailed additional
questions and conduct a degree of post-contractual analysis that amounts to
an additional workstream of internal audit, your claim is only likely to retard
the ultimate publication of CANs and other contractual information via the
usual channels, as key officials will inevitably be distracted by having to
address your clients’ claims instead. Given the need for publication teams to
engage with the original procurement teams, publication cannot be readily
expedited simply by directing additional administrative resources to the
task.”
38 In addition, it was said that undue pressure to expedite publication, which was already
taking place as rapidly as possible, would “almost inevitably come at the expense of
accuracy, ultimately undermining the aim of proper transparency”. Finally, GLD noted
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that the proposed challenge was in essence a procurement challenge under the PCR 2015
and that the Claimants therefore had no standing to bring it.
39 GLD sent a further letter on 8 September 2020 making a correction that is not material
for present purposes.
40 The Claimants’ solicitors responded on 11 September 2020. They said this about GLD’s
letters of 7 and 8 September 2020:
“In those letters your clients either implicitly or explicitly:
1. Admit that they are routinely breaching their legal obligations to publish
contract awards within 30 days and will continue to commit further breaches.
All you are prepared to offer is that the contract awards will be published ‘in
due course’, and that it is likely they will have been published by the date of
any order. We read this as suggesting that this litigation will determine the
timing of publication.
2. Admit that they are routinely breaching their policy of publishing the
contracts themselves, and will continue to do so. The correspondence is
conspicuously silent on the issue of publishing the contracts themselves.
3. Provide no timescale for addressing these breaches.
4. Adopt the proposition that so long as any identifiable failures are addressed
by the time the Court becomes involved, the claim should be dismissed.”
41 The Claimants’ solicitors went on to say that the Secretary of State’s stance amounted to
a decision that his legal obligations were “optional” and “proffering a novel ‘passage of
time’ defence to judicial review”. They offered a final opportunity for the Secretary of
State to address the “admitted, continuing illegality” by confirming:
“That a list of unpublished contracts will be provided within a further 7 days.
It is not credible for your clients to suggest that this information is not readily
available, whilst in the same breath assuring us that they are committed to
publishing contract awards eventually. Your clients must know to whom they
have agreed to pay vast sums of public money.”
42 GLD responded on 17 September 2020. They said this:
“Your characterisation of the Pre-Action Response, in particular the first four
numbered bullet points of your letter of 11 September 2020, is not accepted.
Indeed, the position we sought to express is the precise opposite of how you
purport to read it. For the avoidance of doubt, no admissions are made in the
terms you advance.”
43 The letter went on to reiterate the pressure under which the relevant teams were operating
and invited the Claimants to reconsider their threat of litigation.
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made his statement in November 2020. These were not discretionary or long-term supply
agreements, but predominantly contracts for vital products necessary to keep frontline
health workers and the wider public safe and to treat those who were already infected.
There were five “pillars” within the Department’s procurement program: ventilators;
testing; medicines; PPE and medical devices; and non-clinical goods and services.
Responsibility for leading procurement on these pillars was allocated between senior
leaders in the Department, NHS England & NHS Improvement, NHSX and Cabinet
Office. Large numbers of additional personnel had to be brought in to support this work
at very short notice. This included over 400 buyers from the Ministry of Defence and the
Government Commercial Function to support the work procuring PPE alone. Test &
Trace was launched on 28 May 2020 and now comprises some 3,987 civil servants and
contingent workers, 307 of whom are members of the commercial team. The
Department’s core teams were involved in cross-cutting activities, such as demand
forecasting, data reporting, supply engagement and contract/logistics support. All the
various teams were also supported by number of external professional advisors brought
in to provide additional assistance and expertise in the context of the crisis.
53 The Department’s procurement-related activity was undertaken using a range of external
systems. Information that would usually be stored in a single e-procurement system was
dispersed between shared mailboxes and at least four other IT systems. The need to
second staff from other departments complicated matters further, as each department has
its own IT system which cannot usually be accessed by staff in other departments. Giving
access to secondees is not straightforward.
54 Mr Webb explained the publication of contract information is also not straightforward.
CANs in particular cannot be withdrawn or amended once published (although the
Secretary of State’s counsel accepted that a new CAN in respect of the same contract
could be published). They therefore have to go through a full “mini audit” procedure
before they are sent the publication to make sure that the information contained in them
is accurate. Where this is done by staff who are not involved in the original procurement,
this will not be a simple task. It is a “complex, labour-intensive and time-consuming
process, complicated by the fact that DHSC cannot independently access information
held by other Departments”. There were particular difficulties in the early stages of the
pandemic, when in some cases contracts were negotiated on the Department’s behalf by
officials from other Government departments and there was uncertainty about who was
responsible for publication. However, Mr Webb said that these difficulties were now in
the past.
55 Mr Webb explained that one of the most time-consuming elements of the process has
been redacting contracts in advance of publication, in accordance with the Freedom of
Information Act 2000, especially where this has had to be done by new, inexperienced
staff.
56 Mr Webb circulated guidance to procurement teams within the Department and the
executive agencies for which the Secretary of State was responsible, such as Public
Health England (“PHE”) and the Medicines and Healthcare Products Regulatory Agency
(“MHPRA”). This included a reminder of the legal obligation to publish a CAN within
30 days. Nonetheless, the scale and complexity of the procurement exercise meant that
“regrettably, a backlog emerged in respect of the publication of CANs, CF notices [i.e.
reg. 108 notices] and redacted contracts”. Mr Webb explains the steps that have been
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taken to address this backlog. These have included the deployment of additional
personnel. But it was “overly simplistic” to suggest that rapid recruitment would have
resulted in the notices and redacted contracts being published sooner. This is because it
would have taken time for new staff to become fully acquainted with the systems and
procurement structure. Training them would have taken existing members of staff away
from their important tasks.
57 Under the heading “Current status of publication of information relating to COVID-19
contracts”, Mr Webb indicated that, as of 25 November 2020, 530 CANs had been
published, comprising 93% of the contracts for which a CAN is required (not including
certain contracts entered into by executive agencies for which the Secretary of State was
responsible, where he says compliance with transparency obligations is a matter for the
agencies themselves); and 513 reg. 108 notices had been published on Contracts Finder,
comprising 68% of the contracts awarded more than 90 days ago for which such a notice
is required. Further details are given of the percentages within some of the five pillars.
As to the provisions of the contracts themselves, the Department’s systems did not
currently have the functionality to report on whether contract documentation had been
published. However, Mr Webb undertook a sampling exercise across the different pillars.
He looked at 49 CANs and found that 39 (80%) had redacted contract information
attached.
58 Finally, Mr Webb explained “why the same problems that led to late publication are not
now likely to recur”. One reason was that the procurement effort at the start of the
pandemic meant that there are stocks in place to meet future need, so the procurement
landscape has stabilised. In addition, Mr Webb had recruited a full-time Governance and
Assurance Manager, who he had asked to “come up with a reporting mechanism that can
be adhered to even in circumstances where the scale and complexity of procurement
increases rapidly”.
59 In a second statement dated 23 December 2020, Mr Webb gave further details and
exhibited various documents. He also updated the figures given in his first statement. As
of Thursday 17 December 2020, 563 CANs had been published, comprising 99% of the
contracts for which a CAN was required (not including certain contracts entered into by
executive agencies for which the Secretary of State was responsible, where compliance
with transparency obligations is a matter for the agencies themselves); and 667 reg. 108
notices had been published on Contracts Finder, comprising 90% of the contracts
awarded more than 90 days ago for which such notices were required.
60 A further update was given by GLD in a letter of 22 January 2021. As at 21 January 2021,
the position was that:
“(a) Excluding contracts awarded less than 30 days before that date, the
Department has awarded a total of 592 contracts for which publication of a
CAN is required. All 592 CANs have been published.
(b) Excluding contracts awarded less than 90 days before that date, the
Department has awarded a total of 892 contracts for which publication of a
Contracts Finder notice is required. Of those, 823 Contracts Finder notices
have been published (i.e. 92%).”
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61 Neither of Mr Webb’s first two witness statements includes information as to the
proportion of CANs that were published within the time limit set by reg. 50 or as to the
proportion of reg. 108 notices published within 90 days of the contract award.
Mr Maugham’s second witness statement
62 On 11 January 2021, the Claimants filed a second witness statement from Jolyon
Maugham. Mr Maugham drew attention to a report by the National Audit Office
(“NAO”) entitled Investigation into government procurement during the COVID-19
pandemic (HC 959), published on 26 November 2020, which said at para. 3.27 that, for
over half of contracts with a value exceeding £25,000 awarded up to the end of July 2020,
details had not been published. This did not seem to tally with the Secretary of State’s
evidence. Mr Maugham pointed out that the Secretary of State’s figures excluded
contracts entered into by executive agencies including PHE and the MHPRA. Since the
Secretary of State remained responsible for these agencies, the Secretary of State should
be able to evidence compliance for these contracts too.
63 Mr Maugham went on to make a number of points based on the NAO’s 26 November
2020 report. The NAO had found persistent breaches of the Government’s transparency
obligations in other contexts (para. 3.26). It noted that directly awarded contracts
accounted for well over half the overall value of contracts entered into by the Government
(para. 2.5), that Cabinet Office spending controls were disapplied in relation to these
contracts (para. 3.8), that some were entered into before due diligence checks had been
carried out (para. 3.19) and that many were not properly documented (paras 3.21 to 3.22).
The NAO had also said that a “high priority lane” had been created and that suppliers
processed through that lane were ten times as likely to secure contracts as those processes
through the ordinary lane. Mr Maugham drew attention to the NAO’s conclusion (in para.
25 of the Summary):
“While government had the necessary legal framework in place to award
contracts directly, it had to balance the need to procure large volumes of
goods and services quickly, with the increased commercial and propriety
risks associated with emergency procurement. We looked in detail at a
sample of contracts selected on a risk basis. Although we found sufficient
documentation for a number of procurements in our sample, we also found
specific examples where there is insufficient documentation on key
decisions, or how risks such as perceived or actual conflicts of interest have
been identified or managed. In addition, a number of contracts were awarded
retrospectively, or have not been published in a timely manner. This has
diminished public transparency, and the lack of adequate documentation
means we cannot give assurance that government has adequately mitigated
the increased risks arising from emergency procurement or applied
appropriate commercial practices in all cases. While we recognise that these
were exceptional circumstances, there are standards that the public sector will
always need to apply if it is to maintain public trust.”
64 Mr Maugham referred also to a second NAO report, The supply of personal protective
equipment (PPE) during the COVID-19 pandemic (HC 961), published on 25 November
2020. This included details of the three largest PPE contracts – with Full Support
Healthcare Ltd (for £1,717 million), Supermax Healthcare Ltd (£366 million) and
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held at [38] that Arden LJ’s observations in Chandler (and Richards J’s in Kathro) had
not been intended to suggest that anyone who did not have an “ulterior” or “improper”
motive would have standing. Rather, he said:
“39... The approach taken by the Court of Appeal in Chandler’s case [2010]
PTSR 749 is in my view clearly grounded in a conventional approach to an
assessment of standing. However, that conventional approach, focused upon
the purpose and policy of legislation being invoked, leads to a much more
restrictive qualification for standing in procurement cases than would apply
in judicial review generally.
40. It is clear from the 2006 Regulations... that the purpose of those
Regulations and the Directive which lies behind them, is firstly, to provide
for an open and transparent system for the competition for public contracts
in the interests of securing a fair and efficient market for those contracts and
secondly, to provide a bespoke system of remedies for those parties who are
directly involved in competing for such contracts and participating in the
market for them. This regime is quite clearly tightly focused on those directly
engaged with and actively seeking the benefit of obtaining public contracts
that fall within the scope of the 2006 Regulations. The public interest is no
doubt served by these aims and objectives of the 2006 Regulations (for
instance, by fostering value for money and the objective evaluation of bids
for public works), but that is very different from saying that it follows that
any member of the public could have an interest in the enforcement of those
Regulations which should be recognised by the grant of standing in judicial
review. It is in my view entirely consistent with the purpose of the
Regulations to confine standing in any judicial review claim brought outside
the extensive range of remedies available to economic operators, and by a
person who is not an economic operator, to only those who ‘can show that
performance of the competitive tendering procedure... might have led to a
different outcome that would have had a direct impact on him’.”
86 Thus, Dove J held at [41] that, whilst a trade association might satisfy the test, a council
tax payer or concerned local resident or member of the local authority cannot without
more bring themselves within it, because the procurement decision would have no direct
impact on them. At [42], Dove J said this:
“It follows that I do not feel able to follow the approach which was taken by
Lang J in Gottlieb’s case... for the following reasons. Firstly, it is pertinent
to note in my opinion that Lang J recognised that for the claimant in that case
to be found to have standing to bring the claim it would be necessary to
distinguish Chandler’s case. For the reasons I have already given that must
be right. I am, however, unable to accept Lang J’s reasons for distinguishing
Chandler’s case and reaching the conclusions which she did. Her grounds for
distinguishing the claimant in Gottlieb’s case from Chandler’s case, set out
in para 153, related to considerations of ulterior motive, which she considered
existed in Chandler’s case but which did not arise in the case before her as
the claimant genuinely wanted to have an open competition for the
procurement of the development partner for the development. The difficulty
with that analysis is that in my view it does not engage with the reason why
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rule of law...; the importance of the issue raised...; the likely absence of any other
responsible challenger...; the nature of the breach of duty against which relief is
sought...; and the prominent role of the applicants [in the relevant subject area]”. See
also Auburn, Moffett and Sharland, Judicial Review: Principles and Procedure (2013),
§24.26; R (Jones) v Commissioner of Police for the Metropolis [2020] 1 WLR 519 (Div.
Ct), [38], and R (McCourt) v Parole Board [2020] EWHC 2320 (Admin) (Div. Ct), [31]-
[32].
97 However, the application of these general principles is acutely sensitive to context. This
is because the question whether it is necessary to confer standing to vindicate the rule of
law depends, among other things, on the availability in principle and in practice of
alternative challengers and alternative remedies.
98 The case law on which the parties have focussed in this case applies the general principles
relevant to standing to the particular context of challenges to individual procurement
decisions alleging breaches of the relevant procurement regime. With that context in
mind, the proper starting point is the judgment of the Court of Appeal in Chandler. The
reasoning in that case was strictly obiter, but is nonetheless entitled to considerable
weight, carrying as it does the imprimatur of such a distinguished constitution. (Although
the regime under the PCR 2015 differs in certain respects from that under the PCR 2006,
the aims of the regimes are similar and the differences are not material.)
99 I draw the following propositions from the reasoning of the Court of Appeal in Chandler:
(a) In the context of an individual procurement decision, a failure to comply with the
2006 Regulations is an unlawful act and thus “a paradigm situation in which a
public body should be subject to review by the court”, even where there is no
economic operator who wishes to bring private law proceedings: [77].
(b) A claimant may have standing to challenge an individual procurement decision if:
(i) despite not being an economic operator, he “has a sufficient interest in
compliance with the public procurement regime in the sense that he is
affected in some identifiable way” by the challenged decision (for example,
because compliance “might have led to a different outcome that would have
had a direct impact on him”); or
(ii) “the gravity of a departure from public law obligations” justifies the grant of
a public law remedy: [77].
(c) The recognition that standing may arise in situation (ii) shows that, even where the
challenge is to an individual procurement decision, the Court of Appeal in
Chandler did not intend to make it a precondition of standing that the claimant
could show that he was personally “affected in some identifiable way” by the
challenged decision. This is consistent with the general principles enunciated in
World Development Movement.
(d) Alongside the “gravity” of the breach alleged, the court must also consider whether
there are other more appropriate ways for the alleged breach to be litigated. In the
context of an individual procurement decision, that requires a recognition of the
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164 The second provision inserted was s. 85B, headed “Offences of recording or transmission
in relation to broadcasting”. This makes it an offence for a person to make an
unauthorised recording or unauthorised transmission of an image or sound which is being
broadcast in accordance with a direction under s. 85A. Section 86B(6) provides that a
recording or transmission is “unauthorised” unless it is (a) authorised by a direction under
section 85A, (b) otherwise authorised (generally or specifically) by the court in which
the proceedings concerned are being conducted, or (c) authorised (generally or
specifically) by the Lord Chancellor.
165 The Claimants relied on s. 86B(6)(b). They argued that it would make no sense unless
the court had power to authorise recording or transmission other than under s. 85A. This
is topsy turvy statutory construction. Both the heading and operative language of s. 86B
make plain that it is concerned with the creation of an offence and with the delineation
of its scope. The function of s. 86B(6)(b) is to make clear that no offence would be
committed by a person who records or transmits footage pursuant to an authorisation by
the court. That is not surprising. One would not expect something authorised by a court
to give rise to criminal liability.
166 Nothing in s. 86B purports to define or expand the scope of the court’s powers to
authorise broadcast and recording. Those powers are set out in s. 86A. That provision
would not have been drafted as it is if the intention were to empower the court to permit
recording other than for the purposes of record-keeping.
167 There is accordingly no power to permit proceedings in the Administrative Court to be
recorded for the purposes of broadcast, even when the proceedings are conducted wholly
as video proceedings.
168 This does not generally, and did not in this case, prevent the public from having access
to proceedings conducted wholly by video in the Administrative Court. In line with the
Court’s usual practice, the cause list published on the day before the hearing included an
email address through which any member of the public could apply for access to the
online platform. All 19 who applied were able to access and watch and listen to the
proceedings in this way. The proceedings were therefore at least as accessible as they
would have been if held in court.