Good Law Project Ltd v Secretary of State for Health and Social Care
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 18 February 2021 |
| Neutral Citation | [2021] EWHC 346 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3610/2020 |
| Date | 18 February 2021 |
The Queen on application of
[2021] EWHC 346 (Admin)
Mr Justice Chamberlain
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
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
Introduction
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.
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.
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”.
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.
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. 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.
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”).
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
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 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.
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.”
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.
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.
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.”
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.
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...
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