Good Law Project and others v Secretary of State for health and Social Care 12.01.2022

A note from a Provincial Hack.

The Covid pandemic has disrupted our society and had a corresponding impact on Government Expenditure. One organisation monitoring Government spending estimates £44.3Bn in Covid related procurement as at 25.11.2021 [Tussell group]. Of this £44.3Bn, an estimated £20Bn has been spent on PPE (Personal Protective Equipment) and hospital contracts.

The reader will recall the dark days of April, May and June 2020. Hospitals were crying out for PPE. The Government was coming under pressure for a perceived failure to be prepared in this, and indeed in other, regards.

In response, the Government created a ‘fast track’ (the VIP lane) for ordering goods and services, including PPE on an emergency basis. As I recall, it was ‘all hands to the pumps and we will deal with the problems later’. I recollect no rallying call for ‘Bureaucracy Now, PPE Later!!!!’. Ministers were not mobbed by crowds of angry people calling for ‘Scrutiny Now, Doctors and Nurses can wait!!’.

But I was wrong:  Enter the ‘Good Law Project’ and ‘EveryDoctor’.  About 12 months ago they commenced legal action calling into question the VIP lane. The case of these self appointed guardians of public propriety was simple. They questioned the legality of contracts being awarded to those with connections to politicians without going through the normal bureaucratic procedures.

Yesterday the Good Law Project trumpeted as follows:

‘Over a year of hard work has paid off today. The High Court has ruled that the Government’s operation of a fast-track VIP lane for awarding lucrative PPE contracts to those with political connections was unlawful’. [website, Good Law Project 13.01.2022].

Well, “yes and no”, as we will see later on. I think the conclusion of a ‘1-1’ draw is a better one to draw than that of unbridled and self righteous triumph. But I digress…

The Good Law Project then goes on to state (Website 12.01.2022):

‘Never again should any Government treat a public health crisis as an opportunity to enrich its associates and donors at public expense’.

 Respectfully, it one thing to seek to use the law to correct, guide and see justice done. It is quite another to accuse one’s opponent of corruption.

The judge also held

“offers that were introduced through the Senior Referrers received earlier consideration at the outset of the process. The High Priority Lane Team was better resourced and able to respond to such offers on the same day that they arrived”.

Again, a note of caution needs to be injected here, maybe a little perspective, and, dare I say it ‘balance’.

The Good Law Project is correct, of course, in stating that the judge held that the VIP system was unlawful. But, and here is where the ‘1-1’ draw comes in, the judge did not stop there….

The judge held even had the correct procedures been followed, and the VIP track not been in existence, the two companies, Pestfix and Ayanda would have been awarded the contracts because of their expertise in the field.

There was much Judicial criticism of the Department for Health and Social Care.  But there was recognition also on the part of the Learned Judge that (para 450 to 452 of the judgment) this was an emergency and resource to audit contract applications was scarce. This is why some of the raucous crowing of the Good Law Project borders rather, on the distasteful.

I suggest it was this recognition of the then prevailing circumstances that caused the judge to come to the findings she made. Yes, whilst it was undoubtedly true that there were procedural short-comings in auditing the applications from companies seeking to answer the call of the government for emergency supplies, yes, parties known to politicians were fast tracked. But that needed to set against the crisis at the time and the lack of audit resource within government. At the heart of her decision, the judge was, it seemed to me, wrestling with the question of how to reconcile procedural niceties with the then need to take emergency action to save lives. The judge may have had at he back of her mind the real danger that there may be other variants or pandemics and the need to take emergency action, whilst needing guidance, should not be hampered to the extent that governmental hands would be effectively tied in future.

So how did the Judge go about achieving justice in this case? By an in depth analysis of the companies involved and coming to the conclusion that both sides were, to some extent at least, right. She handed the procedural victory to the Good Law Project but then said to the government, well, you got it right in terms of the substantive ends if not the means employed. An elegant judicial compromise. Judges have done this throughout history. In humble cases of negligence and contract judges regularly come to the conclusion that the defendant is in breach of duty or contract, and then go on to hold that the loss or event complained of would have occurred in any event.

Now, of course, the judgment runs to 125 pages and the above is a gross simplification. The word space of this article is limited, and many reading will have long lost the will to live in reading it, but  I think I have covered the main points, and perhaps, through reading the judgment, gained a little insight into the dilemmas facing the judicial mind. So often, judges are called into areas of law which are at the cutting edge of politics. This is particularly so in cases where judges are called on review the decisions of government. Perhaps that calls for a wider discussion as to limits of the power of the executive as against the proper role of the judiciary.

And finally…. Perhaps a gentle word of admonition to the Good Law Project, and here I refer to the cited passage above from their website (13.01.2022)

‘Never again should any Government treat a public health crisis as an opportunity to enrich its associates and donors at public expense’.

I am not aware that any criminal charges have been brought, which is, after all, the gist of this quote. Lest and before we ever come to crow too loud, a soft word of caution and good will to all: it would be as well to try at least to put oneself in the eye of the storm facing politicians and civil servants in time of global crisis. Sometimes governments must act to avoid catastrophe. Not often will this be the case, I grant you, but sometimes – exceptionally. There are situations where, whether we as lawyers like it or not, the substantive ends must overrule the procedural means. What is seen as so wrong in the cool air conditioned court room some 18 months down the line, may be seen as justified when the wolf is at the door and people are dying in their hundreds.

Jonathan Compton

LLB LLM Solicitor

Partner DMH Stallard LLP

Barrister.

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