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Tuesday, May 11, 2021

No, Hancock’s PPE contracts haven’t been ruled ‘unlawful’

No, Hancock’s PPE contracts haven’t been ruled ‘unlawful’

The High Court has said the government acted unlawfully. It is important that is understood, because ‘unlawful’ is a word that can easily mislead.

Above all, no one should accidentally think the Court has said that any of the PPE contracts are unlawful. They are not. What the Court has said is that because, on average, the contracts were published on a website after 47 days, the Department of Health and Social Care was unlawful because it promises to publish within 30 days.

The government promised 30 days and 47 days is more than 30: that is unlawful.

PPE was needed because of the pandemic and, due to the global shortages, the Department of Health and Social Care made contracts to get PPE. The Department was then under a legal obligation to publish those contracts within 30 days because the government made that obligation. When the 30 day rule was created, the government did not add in a bit saying ‘but in the case of a global pandemic you can actually have 47 days’. If it had, it would be lawful.

The government can – and now probably will – either extend the 30 days or just get rid of it altogether, but the Department is now unlawful for breaching its promise. I would say to a client that it is a ‘technical breach’.

On that word ‘technical’, I am not being a politician, I’m using it as a lawyer. A technical breach of a contract is one that happens but causes you no loss. It is a wrong. It’s unlawful to breach contract terms, but if you suffer no loss then it doesn’t matter – I can’t advise you to sue if you suffer no loss, if I do I am being unlawful.

But in this area of law, you can get a ‘declaration’ from the Court even if you have no loss. That can be as simple as the judge saying, ‘I hear you’. That might be what you need – in cases where someone has died, a grieving family might really need that declaration – but whether the declaration is of any other use is not for me. It is a declaration and I can say no more.

But two other important things were noted by the Court in this case: three MPs tried to also tag along (see paragraphs 106 & 107) and a unique request to have a TV production company film the case was made (paragraph 161).

The TV company request was made because the Claimants wanted to record and re-broadcast the proceedings, in the interests of open justice. There is a global pandemic and the Good Law Project, founded by Jolyon Maugham QC, said that as a result, normal time rules and technical rules should not apply. But being consistent, the court said no: the Claimants could not have their request fulfilled; it would be unlawful to do as they asked.

That the three MPs (Debbie Abrahams, Caroline Lucas and Layla Moran) also tried to tag along is odd from a legal point of view. The three MPs are not rival PPE manufacturers. None of them are shadow health ministers. None of the three are lawyers.

We do not often see MPs down the courts, trying to tag on to cases – or we did not used to. MPs, you see, have political power that you, me and the courts do not have.

The Judge said this:

“… the addition of politicians as claimants may leave the public with the impression that the proceedings are an attempt to advance a political cause, when in fact their sole legitimate function is to determine an arguable allegation of unlawful conduct

That sole legitimate function has been fulfilled. Even in a pandemic, 47 days is more than 30 and thus unlawful. The court did not and could not quantify how ‘unlawful’ this is. Perhaps, really, that is a personal political question.

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In the late 1930s, the Federal Reserve Board refused to admit it was a government institution. So Patman convinced the District of Columbia’s government to threaten foreclosure of all Federal Reserve Board property; the Board quickly produced evidence that it was indeed part of the federal government.

Matt Stoller
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