Last week the High Court made a widely publicised decision declaring that a government minister and his department had acted unlawfully in relation to the award of PPE procurement contracts in the early weeks of the pandemic. The case is called R (Good Law Project and others) v Secretary of State for Health and Social Care  EWHC 346 (Admin). It’s of particular interest to us because it’s all about transparency.
In fact there are two types of transparency involved. The main one is about political transparency, about public scrutiny of the operation of government.
But there’s also a question about the transparency of what goes on in court, which is why, even though it is not about family justice, it is also of interest to us.
There’s been some misunderstanding of the significance of this decision, because it sounds really serious. A government minister? Acting unlawfully? Shouldn’t they be prosecuted? Shouldn’t they at least resign?
But it’s not that kind of unlawfulness. The confusion arises because of a lack of understanding about what these proceedings were about. These were judicial review proceedings, not a prosecution. When a claim is brought for judicial review, the court is asked to examine a decision or other conduct by a public body, usually the government or a local council, to see whether it:
- Did not have power to act or decide as it did (so it acted “ultra vires”, or outside its powers);
- Acted in an irrational or disproportionate way to such an extent that it was an abuse of whatever power the authority did have;
- Made a decision on the basis of the wrong information, which was therefore flawed;
- Failed to comply with the right procedure.
In this case, the court decided that the Secretary of State for Health (Matt Hancock MP) and his department had failed to comply with a policy to publish, within a specific timeframe, details of the PPE contracts awarded during the early part of the pandemic. So the claim was not about the contracts themselves or who they went to. Those questions may well be the subject of different legal proceedings. This particular case was about the failure to publish the details of those contracts within the specified time.
The duty to publish details of public procurement contracts arose primarily under legislation: reg. 50 of the Public Contracts Regulations 2015 (“PCR”), which requires publication of a contract award notice (“CAN”) within 30 days if the contract is worth more than a specified minimum. But there was also an official Transparency Policy and Transparency Principles which require publication of the provisions of any contract with a value over £10,000.
Most of the contracts have now been published, and the government admitted that they were in breach of reg 50 in not publishing them sooner. Although they tried to say that compliance with the Transparency Policy and Principles was not a legal requirement as such, the judge held that they were legally obliged to do so, and their failure to do so was unlawful.
People have suggested that the claim was pointless because the government had already complied with its obligations, albeit rather late, and the court only made a declaration and did not order the government to do anything that it wasn’t already going to do. But the judge clearly thought that the bringing of the proceedings was one of the things that had made the government get on with publishing the contracts, and that it might not otherwise have done so, or might have taken even longer. It’s hard to see why the government spent so much money fighting the claim if they were going to admit the thing in the end.
Both sides exaggerated their arguments, which is tiresome but not unusual in legal proceedings; and the judge criticised three MPs for joining the action as claimants when they needn’t have done: it was enough for the crowdfunded public campaigning body The Good Law Project to have brought the case by itself. No doubt the MPs helped give the case some publicity, and boost fundraising, but the judge also thought they could have made it look a bit too political.
But the case was an important victory for transparency in politics and government. The point can be explained by something in paragraph 1 of the very Transparency Principles which the government was found to have breached:
“Transparency and accountability of public service delivery data and information builds public trust and confidence in public services. It enables citizens to see how taxpayers’ money is being spent; and allows the performance of public services to be independently scrutinised.”
The judge himself summed it all up quite nicely in para 140 of the judgment:
“The obligations imposed by reg. 50 and by the Transparency Policy and Principles serve a vital public function and that function was no less important during a pandemic. The Secretary of State spent vast quantities of public money on pandemic-related procurements during 2020. The public were entitled see who this money was going to, what it was being spent on and how the relevant contracts were awarded. This was important not only so that competitors of those awarded contracts could understand whether the obligations owed to them under the PCR 2015 had been breached, but also so that oversight bodies such as the NAO, as well as Parliament and the public, could scrutinise and ask questions about this expenditure. By answering such questions, the Government “builds public trust and public confidence in public services”: see §1 of the Transparency Principles. One unfortunate consequence of non-compliance with the transparency obligations (both for the public and for the Government) is that people can start to harbour suspicions of improper conduct, which may turn out to be unfounded.”
The NAO is the National Audit Office, who published a report on the government’s PPE procurement process, and its various shortcomings, in November 2020: Investigation into government procurement during the COVID-19 pandemic.
Transparency in court
All in all, as you can see from the above, the judge was keen to promote the idea of transparency – at least in government. Which makes his attitude to transparency in court just a little bit disappointing.
The point arose because the case was heard remotely (ie by video meeting) and, before it began, the claimants asked the judge for permission for a television production company to record and re-broadcast the proceedings in the interests of open justice. The judge refused.
He didn’t refuse because he didn’t think it was a good idea, but because he said he didn’t have the jurisdiction, ie the power, to allow such a thing.
The starting point, when looking at the law, is that all photography in court is banned, and has been for nigh on a hundred years, since section 41 of the Criminal Justice Act 1925. It’s not just photography: you can’t draw or sketch in court either, which is why courtroom artists have to look first, then dash out of the court, quickly sketch a bit, then go back in again.
The ban extends to making a moving film or video recording: although video recording wasn’t a thing in 1925, the scope of section 41 was later interpreted by the Court of Appeal in the case of R v Loveridge  EWCA Crim 973 as including video recording.
There have been some exceptions to section 41 of the 1925 Act for other courts, but they don’t apply to the Administrative Court (which is where this case was heard). The most obvious exception is the Supreme Court, where hearings are live-streamed and can be watched on catch-up later, via the court’s own YouTube channel. That’s because the Supreme Court was created by a new statute, the Constitutional Reform Act 2005, and section 41 of the 1925 Act doesn’t apply to it.
There’s also been legislation to permit live-streaming and catch-up recording of certain Court of Appeal hearings, mainly in the civil division, and (in principle, though it doesn’t seem to have happened much) of sentencing remarks in the Crown Court.
But none of those exceptions applied here. However, there is a more relevant exception which the judge then discussed in his judgment in this case. Under the Coronavirus Act 2020, provision was made to enable the public to view remote hearings (like this one) where they could not be conducted in court because of the pandemic.
The Coronavirus Act amended another act, the Courts Act 2003, to add some extra sections dealing with video hearings during the pandemic. Under section 85A, which was headed “Enabling the public to see and hear proceedings”, it provided by subsection (1) that
“If the court directs that proceedings are to be conducted wholly as video proceedings, the court—
(a) may direct that the proceedings are to be broadcast (in the manner specified in the direction) for the purpose of enabling members of the public to see and hear the proceedings;
(b) may direct that a recording of the proceedings is to be made (in the manner specified in the direction) for the purpose of enabling the court to keep an audio-visual record of the proceedings.”
Although it doesn’t actually say this, the judge when citing this section adds the parenthesis “(ie live-streamed)” after the word “broadcast”.
Then by section 85B, under the heading “Offences of recording or transmission in relation to broadcasting”, it made it an offence for a person to make an unauthorised recording or unauthorised transmission of an image or sound which was being broadcast in accordance with a direction under section 85A. Section 85B(6) explained a bit more about what “unauthorised” meant in this context:
“For the purposes of this section a recording or transmission is “unauthorised” unless it is—(a) authorised by a direction under section 85A, (b) otherwise authorised (generally or specifically) by the court in which the proceedings concerned are being conducted, or (c) authorised (generally or specifically) by the Lord Chancellor.”
The claimants relied on section 85B(6)(b). They argued that it would make no sense unless the court had power to authorise recording or transmission other than under section 85A.
The judge disagreed. He called this “topsy-turvy statutory construction” because the whole point of section 85B was to create and define a criminal offence, and the purpose of subsection (6)(b) was to provide an exception where the filming was authorised. “Nothing in section 85B purports to define or expand the court’s powers to authorise broadcasting or recording” he said. (NB. We have changed it slightly because he quoted the wrong section number in the published judgment.)
So essentially he was saying the court only had power (under section 85A) to permit live broadcasting at the time of the hearing, or recording for the court’s own records. It did not have power to allow a pre-recording for later broadcast.
This is undoubtedly a disappointing result for a number of reasons. Public scrutiny of the courts seems barely to have moved into the twentieth century before being constrained by an Act of Parliament made in 1925, and there seems to be enormous resistance to bringing it anywhere near the twenty-first century, except in the most grudging and exceptional way. Yet it has been managed perfectly well for courts like the Supreme Court and Court of Appeal. The sky has not fallen. Proceedings in the Administrative Court involve public law which affects everyone. The public has a right to know. There are no timid witnesses or vulnerable victims to worry about. The same case might easily go on appeal to the Court of Appeal or the Supreme Court and be livestreamed and recorded for catchup on YouTube in those courts. Why not in the High Court as well?
As David Allen Green has pointed out in a blog post carefully explaining the judge’s reasoning, step by step, it is actually his conclusion that seems topsy-turvy, rather than the contentions of the claimants. He says the judge’s use of the parenthesis “(ie live-streamed)” after the word “broadcast” in section 85A is a “deft gloss” which by implication restricts the meaning of the words in a way that Parliament didn’t actually say in the legislation. Moreover, he points out that there is not a rigid broadcast/record distinction in media production. It seems to him at least arguable that a direction could have been made specifying how the broadcast under section 85A(1)(a) should be broadcast, ie via a pre-recording stage (which would then permit later access or broadcast).
Having referred to the bit where the judge points out that open justice was served by permitting live-streaming of the hearing at the time it was going on, just like sitting in the public gallery during a physical court hearing, David Allen Green has this to say (and we agree):
‘Open justice’ does not mean openness only to the very limited extent of the time, effort and commitment of a determined stranger to sit in a far-away public gallery.
The high court should seize the opportunity provided by the coronavirus legislation to make its work more visible to the public generally – especially in public interest cases arising out of the government’s response to the pandemic.
The public gallery is just one manifestation of the principle of open justice, but it is not its only standard nor its only template.
That is, to invoke a phrase, topsy turvy.”
He adds that “a properly produced and professionally edited version of a public interest court case would be a boon for the public understanding of the law.”
We agree. This was an opportunity sadly missed.