Editorial Monday 22 Feburary 2021: The Cummings defence

People's Partridge and Secretary Of State For The Time Being Matt Hancock graced the broadcast airwaves on Sunday morning trying to clear up after being defeated by the Good Law Project over his failure to publish the PPE contracts on the Government's Contractsfinder website in a timely way.

The High Court ruled last Friday that “there is now no dispute that, in a substantial number of cases, the Secretary of State breached his legal obligation to publish Contract Award Notices (CANs) within 30 days of the award of contracts.

“The Secretary of State spent vast quantities of public money on pandemic-related procurements during 2020. The public were entitled to see who this money was going to, what it was being spent on and how the relevant contracts were awarded.”

The judge said that if the Government had complied with its legal obligations, anyone concerned “would have been able to scrutinise CANs and contract provisions, ask questions about them and raise any issues with oversight bodies”, adding that the Department for Health But Social Care could have avoided incurring a £207,000 legal bill, had the Department “candidly” admitted that they had broken transparency rules.

The deeper you go into details of the case, the more serious it gets: “emails read to the High Court showed that civil servants in the Department of Health and Social Care were asked unlawfully to delay meeting their obligations to publish procurement contracts to meet the convenience of No. 10 Special Advisers”.

Oops, Dominic.

Oops.

As asylum and immigration lawyer Alasdair Mackensie notes, Mr Hancock is "employing the Cummings defence here: it doesn’t matter that I broke the law, because I believed in my heart that I was doing the right thing".

Mr Hancock's self-defence that this was a legal process issue is amusingly ironised by prominent lawyer and journalist David Allen Green, who observes that "The UK government that has said it should not be held to strict legal obligations because of the pandemic emergency is the same government that has imposed strict legal obligations on the rest of us because of the pandemic emergency".

The wrong discourse
It's been mildly interesting observing the media and political discourse around this.

The straw man hypothesis says that the Department For Health But Social Care's failure to publish the PPE contracts within 30 days does not mean that SOS Matt Hancock was at fault, and therefore there is nothing to see here.

Move along.

This isn't really correct.

In the first place, the normal trajectory of DHBSC awarding a contract (whether contested or not) includes, as a final stage of the process, publishing that contract on the contracts-finder website.

This normal step didn't happen. That is evidently deliberate: an act of commission, and not of omission.

The appellant's information
Members of the Paying Attention Community would probably have looked at the appellant's coverage of proceedings, and noticed this:

"Internal emails dated 2 October showed that the Government Commercial Office understood it had breached this obligation and, in light of Good Law Project’s judicial review, wanted “to rectify this situation at the earliest opportunity”.

"However, later that day a request was made by an unnamed DHSC civil servant to delay publication of contracts until the week commencing 12 October 2020.

"Another civil servant responded with advice that “we are in legal breach. As we are already in breach I would rather we published as soon as possible. If Press Office do want to delay it would be a good idea to set out the reasons for that in a short note” but adding “it needs to go on No10 grid.”

"On the following Monday, 5 October, the reply came that the delay was needed “to allow No.10 SpAds/PO and policy enough time to be sighted and given full opportunity to comment if needed. This was the rationale for pushing it to the 12th.”

"The contracts eventually published in the week commencing 12 October included £310m of contracts controversially awarded to pest control specialist Crisp Websites Limited trading as Pestfix."

People have missed the obvious: this is not a Matt Hancock story.

It's a Dominic Cummings story.

UPDATE The prominent legal commentator David Allan Green has written this excellent piece on the case’s legal context. It is highly recommended.