22 February 2021

Why isn’t Matt Hancock in jail?

By Will Havelock

In his State of the Union address in 1903, US President Theodore Roosevelt said that in America, no man is above the law and no man is below it. We should all hope that the same principle applies in the UK in 2021 – that everyone, from the humblest citizen to the most powerful minister, has to follow the law and will be held accountable if not.

On Thursday, Mr Justice Chamberlain sitting in the High Court ruled that Matt Hancock had acted unlawfully by failing to to publish certain procurement contracts. In response, many of our humble citizens felt compelled to call for the Health Secretary to be clapped in irons and conveyed forthwith to Belmarsh. ‘WhiteTroll’, for example, garnered almost 4000 upvotes for a comment on Mail Online advocating for Mr Hancock’s immediate incarceration.

So are Ministers more equal than the rest of us? Why is Mr Hancock still serving as a Minister of the Crown rather than at Her Majesty’s pleasure?

Put briefly, breaking the law is not always a criminal offence. As Health Secretary, Mr Hancock had a legal duty to publish the contracts in question within a certain period of time. Instead of a criminal punishment being handed down by the court for his failure to do so, the campaigners pursuing the claim asked the court for a legally binding order on Mr Hancock to publish the contracts. Effectively, the purpose of the claim was to make sure that the Health Secretary carried out his legal duty. In the event, the judge decided that an order to publish was not required because at the time of judgment, the contracts had mostly been published.

It is worth noting that there was no suggestion in Mr Justice Chamberlain’s judgment that Matt Hancock had any personal involvement in the delayed publication. The judgment was made against the Health Secretary, but in his capacity as a Government Minister and legal figurehead for his Department, rather than as a private citizen. In fact, the failure to publish was actually on the part of civil servants in the Department who, in the face of the pandemic, saw a more than tenfold increase in procurement by value and struggled to keep up.

Indeed, on the Andrew Marr Show on Sunday, Mr Hancock did not apologise for the unlawful delays, saying it was “the right thing to do” to prioritise getting the PPE to the frontline rather than ensuring timely transparency returns. I wonder how many of those calling for Mr Hancock’s imprisonment would rather he had published the contracts in the required timeframe even if it meant there was less PPE available for NHS workers.

As a general rule, we should be able to see how the Government spends our money, what it is spent on and to whom it is given. Transparency improves governance. It is right that the Secretary of State is under a legal duty to publish contracts such as those at the heart of this case. However, this case – and the way it has been reported – is likely to have a much more invidious impact than simply improving transparency in public procurement policy.

Opposition politicians and activists have attacked the Government with claims that it has been using procurement during the pandemic as a way to funnel money to its political supporters and donors. It is certainly true that the sums spent by the Government have been large, and have been spent quickly.

What is certainly not true is that Mr Justice Chamberlain in his judgment gave any credence to this line of attack. He accepted evidence from an official at the Department of Health and Social Care that the delay was due to increased volume in contracts and lack of staff. However, that has not stopped figures linking the judgment to the attack line, such as Shadow Health Secretary Jonathan Ashworth who tweeted that the delay was ‘Cronyism’. In fact, there was no evidence to suggest that was so.

Vanishingly few people will read Mr Justice Chamberlain’s judgment in full, or even in part. Most people will only see the headlines in the press. Coupled with tweets such as those by Mr Ashworth, the public at large is likely to come to the conclusion that a court has found against the Government for cronyism, when that is not the case. And this will likely fuel further resentment that the Cabinet are not serving decades behind bars.

Justice must be done and it must be seen to be done. Justice has been done in this case – the Secretary of State has been found to have acted unlawfully – but too many lack the ability and willingness to see.

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Will Havelock is a former parliamentary researcher who is now embarking on a career in the law.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.