Covid-19: Contracts and Public Inquiry

Joanna Cherry Excerpts

Wednesday 7th July 2021 Commons Chamber

[Jo Churchill]

I could not agree more. The vibrancy and quality of the life sciences industry, the pharmaceutical industry and the academic ecosystem in Scotland, in Wales, in Northern Ireland and in the UK really does unleash a bright future for us. It is thanks to that joint working that we have been able to procure at speed vital goods and services, such as ventilators and PPE, which have been so critical to our response in the pandemic. To date, every patient who has needed a ventilator has had access to one. I am sure that the right hon. Member for Ross, Skye and Lochaber will celebrate the jobs that have been created—I think it is 450 of them—at the Honeywell factory in Motherwell, producing PPE for the frontline. We now have a home-grown industry that provides 70% of all PPE, apart from gloves, and we are working hard to find the right materials so that we can have a glove industry as well. That is what I call a success story, from a standing start back in April.

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

rose—

[Alan Brown]

rose—

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[Joanna Cherry]

The hon. Lady will have heard the Minister suggest that the same processes have been followed in Scotland and Wales as were followed by the British Government; but does she agree with me that it is only the British Government who have been found, twice, to have acted unlawfully?

[Fleur Anderson]

I agree with the hon. and learned Lady. This is not about the processes and whether they have been followed, but about what undue weight was given to the resulting contracts that came out of those processes. Some of them have been taken up in court, so there are questions to be answered.

For over 12 months now, my colleagues and I in the shadow Cabinet Office team have been asking some very simple questions again and again of the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, the right hon. Member for Surrey Heath (Michael Gove), and his team over their procurement policy during the pandemic. Every time, we have been met with deflection and non-answers. Those questions have not been getting an answer, so I will try again today. That is not very impressive for the Department responsible for increasing transparency across Whitehall, and it is transparency that we are talking about today. But it is not only about transparency. Were those contracts given to the right companies to save lives at the right time? Without question, we needed speed. Without question, we needed the best companies to be chosen. The question is, when it comes to another emergency, pandemic or crisis, do the Government throw due transparency out of the window and just start talking to their friends?

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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.

[Lee Rowley (North East Derbyshire) (Con)]

I am grateful for the opportunity to contribute to this debate.

I start by saying something with which I hope most Members can agree: I welcome the announcement of a public inquiry and I am glad that the Government are committed to learning the lessons from one. After the most unprecedented time of our lives, when there was no prior institutional memory of what was likely to happen and the risk calculation suggested that a pandemic based on coronavirus was extremely unlikely, we none the less need to learn lessons from what we have gone through and work out how, if there is ever a future pandemic, which I hope there never will be, we ensure that we approach it differently. We must also try to learn lessons from a wider community, society and government perspective.

If we all agree with the concept of a public inquiry, that there are lessons to be learned and reviews that need to happen, and that we need to understand how to work better in future, what do we disagree on? Why are we here, other than for another debate to push forward the suggestion of Scottish independence, in all but another name? The right hon. Member for Ross, Skye and Lochaber (Ian Blackford), who is no longer in his place, said clearly that he wishes to see a public inquiry this year; the first obvious thing on which we disagree, then, is the question of when. I acknowledge that there are arguments for both—I understand and accept that there is a logic to a quick inquiry and a logic to a longer one—but to me the basic premise is that an inquiry should have the opportunity to review what has happened calmly, and not while in the middle of or even near the challenges, or while we run the risk of those challenges coming back. That does not seem to be an inappropriate approach to take.

We have obviously made a huge amount of progress in recent months in terms of resuming normal life and hopefully being able to move back to what we did previously when we get to 19 July, but it remains the case—I presume that, when we pull back all the hyperbole and political machinations, everyone in the Chamber would accept this—that we are not necessarily absolutely and completely out of the woods yet, and throughout the winter a huge amount of work is going to have to be undertaken to make sure that we hold the line and do not go back to lockdowns and the like, to which we do not want to go back. With that in mind, I simply do not understand how we could conclude, on the balance of risk and the weight of evidence, that the inquiry should start immediately, or nearly immediately, when that would almost be guaranteed to take capacity out of our ability to prevent or reduce the chances of any problems over the coming winter. I think most average men and women on the street would accept that.

The second thing on which I fundamentally disagree—or on which those on the Government and Opposition Benches seem to disagree—is how cautious and careful we want to be about the conclusions we draw. I want to learn lessons from this pandemic; it is clear that there are lessons to be learned. I want the Government to improve and to be as effective and as efficient as they can be in terms of their procurement and processes—I say that as somebody who served on the Public Accounts Committee for 18 months in the previous Parliament and saw lots of examples of where we need to improve—but we forget the context of last year, simply to score political points, at our peril.

On procurement, the hon. Member for Inverclyde said that any junior procurement officer would understand from day one exactly how they should approach this. Well, any junior procurement officer would understand from day one that the circumstances of last March and April were entirely extraordinary and are unlikely to be repeated. The concept of procurement is to ensure a process that takes time to get a satisfactory outcome, but if we do not have that time then we have to accept that we are undertaking a prioritisation exercise that pits time against outcome.

If there are people on these Benches, including the hon. Member for Inverclyde, who genuinely think we should have gone through the process of tender, submissions, reviews, notices of publications, cool-off periods, mobilisations and all the things that so many of us who have operated either in local government or in this place for many years know about and understand—we understand the amount of time it takes to get through them—then they should come to this Chamber right now and argue that in March and April last year we should have put out a series of call to tenders for things we needed in our hospitals, our care homes and across our society. That was simply not proportionate or reasonable.

[Joanna Cherry]

I do not think anyone is suggesting that there should not have been an emergency contract tendering process. What people are suggesting is that there should not have been bias in who the contracts were awarded to. That is what the courts said.