In his view, the fact that the Department of Health and Social Care had failed to publish details of the contracts they had entered into to procure personal protective equipment (PPE) was a simple administrative oversight, understandable in the face of a global pandemic. His department was in the business of ‘saving lives’ not pushing paper. But this characterisation of the legal requirement to publish details of public procurement contracts, as a bureaucratic burden, easily dispensed with in times of great urgency, is disingenuous. Paperwork matters because paperwork allows citizens to see how governments are behaving – how they spend public money, how they appoint people to positions of power and how they make decisions that have an impact on citizens’ lives, livelihood, and in the case of this pandemic, their life. Paperwork matters because it helps ensure that governments are accountable to their citizens, even in a crisis.
The High Court ruling in Good Law Project v Secretary of State for Health and Social Care confirms this. The issue raised in this case was that the Secretary of State for Health and Social Care had not published details of the contracts he had entered into to procure PPE, nor had he abided by the government’s own commitment to transparency. This was on top of the fact that there had not been an open tender process when procuring PPE in the first place. As a result, all manner of contracts were signed without the opportunity for competitors to challenge on the grounds that they could have offered a better or more reliable deal.
Whilst the urgency of the situation meant that the Secretary of State could forgo the legal requirement to have an open tender for high-value public procurement contracts, the legislation governing public procurement did not permit a derogation of the requirement to publish details of the contracts 30 days after the contract was awarded. The border policy commitment to transparency in government spending for contracts over £10,000 was also not waived in the emergency. The publication requirement was not burdensome and could have been met simply by publishing details of who the contract was with, what for and for how much. Details that ought easily to have been to hand.
But why does this matter? Why is this not simply a matter of saving lives instead of filing the paperwork? As the government’s own policy explains:
Transparency and accountability of public service delivery data and information builds public trust and confidence in public service. It enables citizens to see how taxpayer’s money is being spent and allows the performance of public services to be independently scrutinised.
Transparency allows citizens to scrutinise the behaviour of their governments. Governments, unlike private citizens, are not entitled to privacy. Government, in a representative democracy, is acting on behalf of citizens and citizens are entitled to see how governments chose to exercise that democratic mandate. The Secretary of State was spending public money in purchasing PPE and the public are therefore entitled to see how it was spent. Mr Justice Chamberlain makes this clear in his judgment:
The Secretary of State spent vast quantities of public money on pandemic-relate procurement during 2020. The public was entitled to see who this money was going to, what it was being spent on and how the relevant contacts were awarded.
The sums of money in issue are indeed vast. As of October 2020, the government had spent £15 billions of public money on PPE. It is right therefore that the public can see how that money was spent, and the paperwork is what makes these transactions visible.
Transparency is also about being effective. When decisions are made in the open, they can be checked, they can be challenged, and they can be improved. Indeed, as scrutiny from the Good Law Project reveals, a significant proportion of the money spent on procuring PPE was wasted on inadequate equipment. For example, £160 million was spent on masks that could not be used. Had these contracts been made in the open, there might have been a greater opportunity to challenge their awards at an early stage when it was still possible to do something about it. Paperwork, therefore, helps ensure that governance is done well. It is not an administrative burden to be dropped for reasons of apparent expediency.
Underpinning the need for transparency is the ugly spectre of corruption. Transparency helps to reduce corruption because it is hard to behave in nefarious ways when under the public gaze. As anyone who has ever been responsible for looking after young children will know, there is reason to be wary when there is silence, the noise and bluster of children provide a helpful indication that everything is ok. The same with governments, there is reason to be suspicious when it is not possible to see or hear what is going on. Governments should not act in the shadows.
Transparency by itself is not enough, however, transparency also needs to be accompanied by an active citizenry able to challenge government actions. This is why the work of public interest organisations like the Good Law Project is a vital aspect of a healthy society. Getting access to the paperwork on public procurement of PPE was therefore a first step in scrutinising the government’s actions. And this judgment is just the first in a tranche of cases being bought by the Good Law Project, and others, challenging the government’s handling of various aspects of the Covid-19 pandemic. From public procurement of PPE to the appointment to the head of the now-infamous Track and Trace programme, the government’s actions have been characterised by a disregard for the principles of accountability and transparency. The fight for paperwork is therefore an essential part of ensuring that the government acts in the interests of its citizens, and not its own.