Covid-19: Contracts and Public Inquiry

Alistair Carmichael Excerpts

Wednesday 7th July 2021 Commons Chamber

[James Cartlidge]

I might give the hon. Gentleman another turn, but let us just put some facts on the table.

In June, 2,000 people in Scotland who tested positive for covid had attended a Euro 2021 event. I am no killjoy. I am quite happy that they attended. I will be attending a Euro 2021 event tonight to watch England vs Denmark. I am quite happy that many thousands of Scots made the journey to London to watch that game, in which their team performed admirably—far better than we did. The idea that the Scottish Government had no power in this matter is ludicrous. If they really thought that this variant was such a concern and that we should have closed the borders, they should not have allowed people to come down in their thousands. The evidence shows that those people are now super-spreaders of covid in Scotland. The hon. Gentleman should not pretend that the Scottish Government had no power in this matter.

Having said all that, I am grateful to the right hon. Member for Ross, Skye and Lochaber, who has now returned to the Chamber, for introducing this debate about covid contracts, because it gives me the opportunity to talk about two covid contracts that are far more important than all the other guff we have heard today. Those contracts are, first, the contract that this Government—indeed, my right hon. Friend and neighbour the Member for West Suffolk (Matt Hancock)—signed with AstraZeneca to procure a vaccine, along with all the other ones that we took a risk on procuring before the rest of the EU. That has brought liberty to millions and saved the lives of thousands, for which we should all be grateful.

The second contract is one that we will not find a copy of, and there was no procurement for it, but again it is of fundamental importance: it is the social contract that exists between the Government and the governed on the basis of when we are expected to give up our precious rights because an emergency exists and when—the key question for me—those rights should be returned because the emergency has passed: a fundamental point given the Prime Minister’s statement on Monday.

The first contract was the generic process through which the UK Department of Health and Social Care negotiated contracts for those vaccines and delivered them in a way exceeding almost all other major nations, delivering millions and millions of doses. I am grateful to the hon. Member for Angus (Dave Doogan) for saying in his intervention that that was the one thing the Government got right, but, boy, that one thing is more important than anything else: it is the way out of the mess; it is the way we get out of lockdown; it is the ways we save millions of lives. And it is not just lives in the United Kingdom that are being saved; it is not just lives in every corner of this precious Union. The AstraZeneca vaccine contract was negotiated so it would be produced at cost. The significance of that enormous contractual point is that the vaccine has been spread around the developing world. We have seen 400 million Oxford-AstraZeneca vaccines go into the arms of the poorest in the world. We should be incredibly proud of that. This Government have an incredibly honourable record in what has passed.

Covid was one of the greatest crises the world has faced; it was completely unprecedented, and every time we have had to make a choice we have been between a rock and a hard place, but the only way out of it, as we all knew, was through vaccines, and we made the right call at the right time, which no other Government in Europe made at that point, and we should be proud of that contract, and it is far more important than all the other stuff mentioned today.

On the second point, the social contract, this is my first opportunity to respond to the enormous announcement we heard on Monday—one I am so grateful for—that we will be returning to normal, restoring our precious freedoms. I believe in the social contract; it is implicit—we all have our own interpretation of it—but at its heart must be the idea that Government have certain powers but they can only use them in exceptional circumstances, if those circumstances are truly an emergency.

Tonight, as I said, thousands—millions—of people around part of the Union will be going to watch a football match. They will be crowded in pubs. The idea that we are still in an emergency is for the birds, and that is because of medical science, and I am profoundly grateful; it is because of the first part of the contract that I spoke about, but because of that we must start taking decisions that restore freedom and return this country back to normal.

I understand that some people are nervous, because I have had emails from constituents who voted in all ways for all parties—and in all ways in the referendum, in case anyone tries to make that link. Some people are still nervous; they worry and think we should still have to wear masks after 19 July and that the Government should still keep measures on. I have no idea where the Labour party stands on this; as far as I can see, they want us to remain in lockdown, but, as the Prime Minister said, if not now, when? Let me answer that: if not now, it is never, because the whole point of the social contract is that if we allow the state to keep that power for too long, it will not come back. The default disposition of the state must be that its citizens are free and that they are only not free in exceptional circumstances, and I believe those circumstances have now passed, and that is because of the vaccine; there are still high numbers of cases, but they are generally not resulting in significant ill health, and because of that we can unlock this lock- down.

[Mr Carmichael]

For the record, I agree with a lot of what the hon. Gentleman says with regard to the social contract, but if his analysis is that we are genuinely out of the end of the emergency period, then surely the same question—if not now, when?—should be applied in respect of the start of the inquiry?

[James Cartlidge]

I have great respect for the right hon. Gentleman and that is a fair question. My own view is that to most of my constituents the question of how soon the time comes when, for instance, they can sing in a choir in a church or go to a nightclub or gather inside with family and friends and loved ones without fearing that they are breaking the law, is more important than how soon the Westminster bubble can get excited about something that will take months and months and months and be pored over by legal people and many others.

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[Joanna Cherry (Edinburgh South West) (SNP)]

If I may, I am going to return to the subject of the motion, which is about methods of scrutiny of the United Kingdom Government.

It has been clear from the outset of the current Prime Minister’s term of office that this is a Tory Government who abhor scrutiny. Shortly after he took office, the Prime Minister tried to shut down Parliament completely. He did so because he was finding its scrutiny of his Government’s hapless progress towards Brexit tiresome. But it is Parliament’s job to scrutinise, and no matter how tiresome hon. Members on the Government Benches may find the subject of the debate, it is actually rather important.

I say to the hon. Member for South Suffolk (James Cartlidge) that I suspect that his constituents, like mine, also care about how their hard-earned money is spent by his Government. They are rightly concerned because two court cases so far—there are others in the pipeline—have revealed that there are major question marks over whether this Government have abused their privilege to line the pockets of their mates.

This Parliament, when it was unlawfully prorogued, sat again only because of the intervention of the courts. That is an indication of how important the rule of law is, and one of the many reasons why the UK Government want to reduce both the scope and the availability of judicial review.

An unlawfully prorogued Parliament is dangerous for democracy, but so is a supine Parliament, and this Parliament is, frankly, a shadow of its former self. Regulations impinging on our basic civil liberties during the covid crisis have been rushed through with the minimum of parliamentary debate. It is not just urgent business regarding covid that this Government treat in a cursory fashion in this Parliament. Earlier this week, we saw a Bill with major implications for civil liberties—including the civil liberties of the Gypsy, Roma and Traveller community, who are protesting outside Parliament this afternoon—go through without proper debate or scrutiny because of the ridiculously short time that the Government allocated to hundreds of new clauses and amendments.

The brutal fact is that this Government do not like evidence-based policy making. In fact, they do not like evidence full stop. They like to run the country and the four nations of this Union free from scrutiny or accountability. They like to do so based on their little Britain, me first ideology and the personal ambition of Ministers—Ministers who have not dared to show their face in the House this afternoon—who look only to their mates for assistance, in return for handsome remuneration and keeping records minimal.

The way in which the Government have handled the emergency covid-19 contracts typifies that approach. The sad thing for British parliamentary democracy is that it is only through judicial processes instigated by concerned citizens acting through the Good Law Project that the full scale of this Government’s chicanery has come to light. So far, the Good Law Project has brought two successful legal challenges against the Government’s handling of pandemic-related procurement, but there are quite a few more in the pipeline, and I suspect there will be more than two successes to come. The two successes so far have established that both the former Health Secretary and the current—for now—Chancellor of the Duchy of Lancaster acted unlawfully. That is a really serious matter, and we would be failing in our duty as an Opposition if we did not bring it to the Floor of the House.

Over and over again, we have heard representatives of the Government try to argue that in the case of the Good Law Project v. Minister for the Cabinet Office, the Court did not find the Government guilty of any actual bias. That is a total red herring, however. The Good Law Project did not seek a finding of actual bias; it sought a finding of apparent bias, which is a well-understood legal term. The test for apparent bias in the law of England, and indeed that of Scotland, is whether the

“circumstances would lead a fair minded and informed observer to conclude that there was a real possibility, or a real danger,”

that the decision maker was biased. That is the test that the Court applied.

Looking at the contract awarded by the Cabinet Office, the Court found that a fair-minded and informed observer would conclude that there was a real possibility that the Government had awarded a significant contract to a company on the basis of bias. In layman’s terms, that means that the Court found that the Cabinet Office awarded a lucrative contract on the basis of favouritism. Even in the middle of a crisis, that is illegal. It is illegal because that money is not the Government’s, but the taxpayer’s. It is my constituents’ money; it is the money of the constituents of the hon. Member for South Suffolk; and it is the money of all our constituents.

These court processes have brought to light emails that would never otherwise have got into the public domain. These emails show that the much-maligned newspaper The Guardian newspaper and openDemocracy were right last year when they alleged that there was institutional cronyism at the heart of the British Government.

[Mr Carmichael]

I very much share the hon. and learned Lady’s analysis of the work of openDemocracy and the Good Law Project. On the subject of emails that are only now coming into the public domain, does she agree that intervening to delay the publication of data relating to care home deaths in Scotland, as a story in The Scotsman indicates that Fiona Hyslop did, was, at the very least, ill advised?

[Joanna Cherry]

I am not aware of the detail of that allegation, but, like the right hon. Gentleman, I was elected by my constituents—for my sins—to come to Westminster to scrutinise the actings of the British Government. Just earlier this year, a whole bunch of MSPs were elected to scrutinise the actings of the Scottish Government, and that is for them to do. Today, I am focusing on this Government.

The point I want to make—I am coming to a close, because I know others want to speak—is that the sunlight that these two judicial reviews have shone on the Government’s back-door dealings shows why a judge-led inquiry is so important. Even when this Government lose in court, they cannot tell the truth about the reasons why they lost. That is why the power of a judge-led inquiry to compel witnesses and the production of documents will be so important. Not telling the truth, or indeed not telling the whole truth when on oath is a very serious matter. In a judge-led inquiry, doing so would have the sorts of repercussions that ought to make most people—even in this Government—think twice. Witnesses are far less likely to get away with prevarication and obfuscation under questioning from lawyers, supervised by a judge. An approach to government that involves saying, “The cat ate the paper trail” or, “My redaction pen is my trusty shield” will not cut it in a judge-led inquiry. Obstructing judicial orders for documents constitutes contempt of court, and experience shows that that threat in a judge-led inquiry often brings to light records that would otherwise have found their way to the virtual shredder.

There is something wrong with British democracy, in that a Government elected by only 43.6% of the UK-wide vote can rule like a dictatorship, treating this Parliament as an inconvenience. Seen from Scotland, the situation is even worse: this Government have no mandate in Scotland, and the party that does have a mandate—the Scottish National party—is frequently treated with contempt in this House. In the past few days, we found out what most of us already suspected: the Prime Minister has so little respect for democracy in Scotland that he wants to close Scotland’s Parliament down. He does not need to worry too much about this Westminster Parliament, because he has already emasculated it.

The rule of law is our only hope. That is what the Good Law Project’s successful cases show: the only way that we can get to the truth of what this lot have been up to is by litigation and a judge-led inquiry. No wonder they are so desperate to limit the scope and availability of judicial review, and no wonder they fear a judge-led inquiry.

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[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

I am pleased that the hon. Member for North East Derbyshire (Lee Rowley) took us back to the position pertaining to March last year, because that is a very important piece of context for this whole debate. It informs the decisions we took then: what we knew about the likely course of the pandemic and how much, in fact, we now know was probably guesswork. I will return to that, because I think it is an important piece of context for the decisions that this House took then and the accountability we are now entitled to demand of Government for the exercise of the powers that this House gave them at that time. Effectively, we gave them the powers on trust.

My right hon. and hon. Friends will support the motion in a Division; however, by way of clarification, we will do so because of the words that SNP Members have put in it, not necessarily because of many of the arguments that they have advanced in support of it. The inquiry requires to be early. There is no real justification for a delay until the spring of next year. The hon. Member for South Suffolk (James Cartlidge) spoke about the social contract. As I said to him at the time, I very much share his analysis. In fact, it is because of that social contract, which essentially comes down to the relationship between the citizen and the state, that an early and thorough, but not overly lengthy, inquiry is absolutely necessary.

To go back to the spirit of March 2020, there was a genuine sense of national endeavour. It was a rare moment in public life, because there was a sense that—in that much misused and overused phrase—we were “all in this together”. It pains me to say that many of the things that we have seen and heard, and that we have discussed today, have done so much to damage and diminish that sense of national endeavour. The earliest possible clarity and resolution of these things—to pick up the words of the hon. Member for North East Derbyshire, the earliest opportunity to decide what is hyperbole and what is hard fact—matters for our politics as a whole.

I was here when the House voted to go to war in Iraq. I believed then, and have believed since, that that was a major strategic error in the United Kingdom’s foreign policy. That was in 2003. It took until 2016 for us to get the Chilcot inquiry report—all 12 volumes and executive summary of it. I do not think that it is hyperbole to say that by the time the report came the moment had somewhat passed. Personally, I still use that report—six volumes act as a laptop stand, and the other six ensure that the door will not blow shut if I open the window. That, I am afraid, is the danger that faces us, and it is why we have to have an early start to the inquiry. If the need for restrictions has passed, as the Prime Minister and so many of his Back Benchers have told us, surely the time has come for us to start that work.

I am sympathetic to the views of those who act as scientific and medical advisers, but the inquiry, when it comes, will have to deal with so much more than just the public health aspects. We need a bit of sympathetic and strategic planning of the time to be taken. The matter that we are talking about today—covid contracts—is exactly the sort of thing that could be dealt with in the early stages of the inquiry, which is why we should be able to start it.

[Christian Wakeford (Bury South) (Con)]

On the comments that the right hon. Gentleman makes about some of the aspects that could be considered now, yes, we are coming towards the end of the pandemic, but we are still in it. Considering that some fiscal measures will go on until at least September, does he not agree that we should wait until we can review the pandemic as a whole and then make meaningful conclusions, as opposed to trying to make quick ones now? Surely we do it right or we do it quickly.

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[Mr Carmichael]

Actually no: it is not an either/or. I think it is eminently possible to have a quick and dirty analysis. In fact, given that we may be looking at further waves, vaccine resistance and the rest of it, I think it is very important that we do have an early analysis of some of the public health aspects. However, that should not be a barrier to a fuller and more thorough analysis of things when we have the full facts available to us. As I say, other public inquiries have proceeded in that way, and I see no reason why this one should not.

The reason why I think it is particularly important that we have an early start is that, as we read in many of the newspapers, the Government’s intention is possibly to go to the country in a general election as early as 2023. An inquiry that starts now might have a fighting chance of bringing at least preliminary decisions to this House and to the public before that point. One that starts in the spring of next year—we know that spring is a moveable feast in Government calendars—will almost certainly still be doing its work when it comes to a general election in 2023, if that is when we get it.

The point is that, in March last year, this House gave a lot of power to the Executive—unprecedented amounts of power. Those powers for the most part, actually, have been unused, but still the Government insist on holding on to them, because that is in the nature of Governments. Once Parliament gives power to the Executive, the Executive are always very reluctant to give it back. We can go back as far as the granting of the power to force people to carry identity cards in 1939. We might have thought that that would finish in 1945, but in fact it was the early 1950s before a court ruled that the emergency had passed and the carrying of identity cards was no longer necessary.

I also want this inquiry to look at what the decision-making process was to ensure that we continued with these emergency powers, because I would suggest that the moment had probably passed in September of last year and had almost certainly passed by March of this year when we renewed them for the second time. So there are questions that can be answered now. They must be answered now, and it is in the interests of politics and the standing of this place that they should be answered now.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I hope that Members will now keep their speeches to under five minutes, because then everybody will get a chance to speak.