LONDON — A fast-track lane that let ministers, MPs and officials refer their contacts for lucrative government PPE deals was unlawful, the High Court of England and Wales ruled.
The government set up a “high priority lane” in March 2020 as Britain scrambled to secure protective equipment supplies amid the pandemic. It came alongside a loosening of procurement rules to allow contracts to be awarded without direct competition.
But, in a judgment handed down Wednesday, judge Finola O’Farrell said a challenge brought by campaign groups the Good Law Project and EveryDoctor had “established that operation of the High Priority Lane was in breach of the obligation of equal treatment,” and noted that the “illegality” of the set-up was “marked by this judgment.”
A total of 47 companies were awarded contracts via the VIP lane. The list, seen by POLITICO, showed that former Health Secretary Matt Hancock helped secure work for four firms; former Downing Street aide Dominic Cummings helped one; and prominent MPs Julian Lewis, Steve Brine, Esther McVey and Andrew Percy were among those who submitted referrals.
The crowdfunded High Court challenge focused on three contracts, awarded to: Ayanda (a private equity firm owned through an offshore holding firm in Mauritius); Pestfix (a pest control specialist); and Clandeboye (a confectionery wholesaler).
The court found the government had allocated offers to the VIP lane on a “flawed basis” and did not properly prioritize bids. It found evidence “that opportunities were treated as high priority even where there were no objectively justifiable grounds for expediting the offer,” according to the ruling.
The majority of the products supplied by Pestfix and Ayanda could not be used by the NHS, the court noted. Of the products supplied by Pestfix, the aprons, gowns, FFP2 and FFP3 masks were all defective in some way and Pestfix is facing legal action. The FFP2 masks supplied by Ayanda have “not been distributed into the NHS.”
The judge found, however, that even though Pestfix and Ayanda received unlawful preferential treatment via the VIP lane, they would likely have been awarded contracts anyway.
“We brought the government to court because NHS staff and other frontline workers were woefully unsupported and unprotected by this government. Many were provided with no PPE, and many died,” said Julia Grace Patterson, chief executive of EveryDoctor.
“Never again should any government treat a public health crisis as an opportunity to enrich its associates and donors at public expense,” added Jo Maugham, director of the Good Law Project. Both groups are now considering the implications of the ruling and potential next steps.
Pressed on the ruling in a briefing for reporters, Prime Minister Boris Johnson’s spokesperson said: “At the height of the pandemic, there was a desperate need for PPE to protect healthcare staff, and you saw the global challenges there were in acquiring it. The government rightly took action to secure it and looked at any and all options available to secure that PPE for our frontline staff.”
They added: “The court has ruled that our industry call to arms was open and transparent. The ruling also states it’s highly likely that these offers would have been awarded if they were processed through other channels. All contracts underwent sufficient financial and technical due diligence and the court found we did not rely on the referral to high priority lane when awarding contracts.”
A spokesperson for Hancock, the former U.K. health secretary said: “At the time, a huge number of people were doing everything they could to get PPE to the front line as fast as possible in a national emergency. As the National Audit Office has confirmed, ministers had no involvement in procurement decisions or contract management. The department was doing the best it possibly could within the rules to respond to an unprecedented situation, and crucially, the court has rightly found that action was justified and absolutely no rectification or further action is necessary.”
Esther Webber contributed reporting.