Transparency in public office is essential to any democracy, but the UK government’s aversion to scrutiny of its procurement track record during the pandemic – an aversion now the focus of judicial and legislative challenges – offers a hint of what may lie ahead for a health service battling almost constant political interference while grappling with underfunding, staff shortages and a life-threatening virus.
One of those challenges – a judicial review (requested by not-for-profit campaign organisation Good Law Project [GLP], alongside a group of three cross-party MPs) of the government’s continuing failure to disclose details of £4bn-worth of pandemic-related contracts – was the subject of a hearing at the Administrative Court last Thursday.
The case began last October, when it was revealed that the Department of Health & Social Care (DHSC) had spent £17bn on covid-related goods and services over the previous six months, but contract details for just £12.4bn had so far been made available to the public, in contravention of legal requirements as well as government guidance.
As part of its case, in November GLP said that the average time the DHSC took to come clean about unpublished contracts was, at that stage, 78 days.
At last week’s culmination of the review, GLP director Jolyon Maugham noted the government failed to deny it had breached its obligations on transparency, but it had still spent more than £200,000 of taxpayers’ money on nine solicitors and five barristers to prepare for a one-day hearing that featured just one witness, along with an unconvincing claim that GLP lacked the legal ‘standing’ to question the DHSC.
A formal ruling on this case should be delivered shortly.
GLP’s justification for pursuing its judicial review was bolstered by publication of a damning report by the National Audit Office (NAO) in November.
This report revealed that, under emergency legislation, contracts worth £10.5bn had been awarded directly to companies with no open competitive procedure. Follow-up research from the Institute for Government, released only last week, showed that 99 per cent of covid-19-related contracts have been awarded with no competition.
The NAO also found that guidance on transparency was not always followed, contracts had been awarded weeks after work had already started, documentation was often missing (particularly in relation to the ‘high-priority’ channel for companies with political connections), and much of the PPE ordered was either useless or yet-to-be delivered.
Despite the seriousness of these revelations, they seem to have made little impact on the government’s conduct.
In December, following the NAO report’s publication, DHSC minister Lord Bethell simply refused to name companies who had won contracts via the high-priority channel, claiming there were “associated commercial implications”.
Putting those “implications” in perspective, Byline Times has helpfully just published research hinting at the extent of this ‘chumocracy’, and showing that the government has awarded covid-related contracts worth more than £880m – that’s 5 per cent of the total expenditure to date on private sector contracts – to individuals and companies who have donated £8.2m to the Conservative Party.
And last October openDemocracy tracked down one Tory local councillor who managed to scoop a £156m contract, again with no competition, importing PPE from China.
Parliamentary scrutiny of the government’s record has inevitably suffered while many MPs have been attending remotely, but Scottish National Party MP Owen Thompson, clearly outraged by the lack of transparency on display, last week presented a ‘crony bill’ in the House of Commons.
His Ministerial Interests (Emergency Powers) Bill aims to ensure MPs can question ministers about personal, political or financial links they may have to companies that have won pandemic-related contracts.
But even though it received the assent of MPs present in the chamber, and will therefore be the subject of a formal parliamentary debate and vote at some stage, the Bill is unlikely to make it onto the statute books given the government’s 80-seat majority in the House of Commons.
So it looks like the only time MPs may have been able to seriously debate the NAO report in any detail was on the morning of 9 December in Westminster Hall, albeit for barely 90 minutes, when the government’s performance was defended by junior minister Julia Lopez, the parliamentary secretary at the Cabinet Office, rather than Boris Johnson or Matt Hancock.
And Brexit is only set to make the procurement and transparency picture worse.
Although The Kings Fund last month assessed that the immediate implications of leaving the EU for competition law and public procurement were minimal, and potentially outweighed by the roll-out of NHS England’s Integrated Care Systems plan, the thinktank was a little more circumspect on the fallout for the UK’s health service from future bilateral trade deals – and with good reason.
The House of Lords had responsibly inserted a clause into the government’s trade bill in January banning any agreement with other countries that “undermines or restricts” the UK’s ability to provide “a comprehensive publicly funded health service free at the point of delivery”.
But, unsurprisingly, no Tory MPs backed the motion, so the amendment was defeated. Trade Minister Greg Hands blithely said there was no need to protect the health service with legislation because “the NHS is not and never will be for sale”.
At the beginning of February, the Good Law Project initiated another judicial review, this time over what it sees as the misuse of Henry VIII powers by the government, potentially enabling ministers to rewrite any law previously touched on by the EU – legislation relating to the state aid regime, for example, which could have a major impact on publicly-financed bodies like the NHS – without parliamentary debate.
Announcing the move last week, GLP said, “With, as we understand it, no state aid regime in place, without the checks and controls it brings, the door is flung open for government to provide financial aid that would favour particular industries and companies over their rivals. Given the government’s tendency to benefit donors to the Conservative Party you may well think we need those rules.”
Despite facing accusations of cronyism and a lack of transparency when it comes to pandemic-related procurement, the government’s commitment to openness remains paper-thin. When the Cabinet Office unveiled its ‘Transforming public procurement’ green paper in December, outlining “long-planned changes to [the] UK’s procurement rules”, the occasional references to transparency in the accompanying press release were outnumbered by phrases such as “more flexibility for buyers”, “cutting red tape”, “reducing bureaucracy” and offering “less burden on business”.
And it remains to be seen whether plans revealed last week by news site Health Policy Insight – to reverse the reforms introduced in the 2012 Health and Social Care Act – will genuinely see an end to competitive tendering and outsourcing in the NHS.
These plans appear to represent something of a power grab for health secretary Matt Hancock – affording him the power to transfer functions from one ‘arms-length body’ to another, effectively strengthening his powers of intervention and eroding NHS England’s independence in the process – without needing to bring full legislation to the House of Commons. Hardly a recipe for openness and transparency.
Last week, Information Commissioner Elizabeth Denham sought to address the hollow defence of ‘commercial confidentiality’ frequently used by government figures when refusing to reveal contract details. She said private companies profiting from pandemic-related work should be subject to the requirements of the Freedom of Information Act, so that journalists and campaigners can scrutinise taxpayer-funded contracts – an idea enthusiastically adopted this week by the Labour Party as part of its new ‘insourcing’ campaign to bring back public services under democratic control.
An excellent development, especially as the government has so far refused to engage with the idea of an immediate public inquiry into its handling of pandemic-related procurement, frequently suggesting there will be ample time in future years for that to take place.
One potential avenue for those seeking to pressure ministers to allow an inquiry would be a petition, but debates scheduled by the House of Commons’ Petitions Committee – ie those which have more than 100,000 signatures – have had to be postponed because sittings in Westminster Hall, where the debates take place, are currently suspended.
The chair of the committee, Catherine McKinnell MP, called on the government last month to urgently make plans to restart petitions debates, but at the time of writing there has been no published response to her request. Consequently, a current petition demanding a public inquiry into government contracts granted during the pandemic – which has garnered 117,938 signatures (as of 6 February) and waited 89 days for a debate – will not be heard any time soon.
Let’s hope the ruling on GLP’s judicial review last week goes in their favour, and leads to greater scrutiny of this government’s actions during the pandemic. It’s essential for our democracy.
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