A couple of minutes ago, the High Court handed down its decision in the Abingdon case and we lost. This article showed that Matt Hancock entered into the contract in the face of legal advice from internal and external lawyers that to do so would be unlawful. But the High Court disagreed.

For reasons that are not clear to us the Court directed that only solicitors and counsel should see the draft judgment so we know little more than the bare outcome. A more detailed analysis will follow later if we conclude it would be useful.

Nevertheless, we have continued to enjoy remarkable success, most recently this decision from July exposing as inadequate and unlawful the Government’s flagship Net Zero strategy. We publish on our website a full spreadsheet of all of our cases, and analysing our legal and campaigning successes here.

It isn’t hard to win more cases - you just choose those which are easier and less impactful. But choosing to win more cases would mean choosing to have less impact. And we will continue to chase impact, including picking the hardest cases where they are important. 

It is not a comment on this judgment but our blog from April 2022 foreshadowed that “threats targeted at judges to curb judicial review” are having an impact on judicial review success rates. It also pointed out that the “change in judicial mood is most intensive when it comes to challenges to poor governance.” This has been borne out by the statistics which we continue to significantly outperform.

We will also continue our practice of fighting cases with and through partners who share our interest in the issue raised in the litigation.

We are, as always, grateful for your support.

Civil servants described the Government’s shambolic testing programme as “unlegit” and “no way to do business”, in new internal emails we can publish today. 

The emails were uncovered in the course of our legal action over the award of multimillion-pound testing contracts to Abingdon Health during the pandemic, which has reached the High Court this week.

Despite warnings from the Government’s own lawyers that these contracts could be unlawful as they bypassed the correct procurement process, emails reveal Ministers steamrolled the project anyway, with then-Secretary of State Matt Hancock exhorting his team to “go hell for leather” at it. The contracts were awarded secretly, without any advertisement or competition. 

Despite substantial public subsidies being gifted by the Government, the antibody tests it supplied were entirely unfit for the Government’s intended purpose. The vast majority expired without ever being used. 

In Court today, it was revealed that the senior civil servant responsible for the antibody testing team fretted that the preferential treatment being given to Abingdon Health would mean that competitors “might complain”. And at one point, the Chief Commercial Officer at the Department of Health asked the accounting officer at the Department of Health to “have a quiet word with Bethell and explain to him that we could make this all a lot more legit if we just took two days to do a public call-to-arms to ‘flush out’ any other companies who might be able to play a role in this space, and remove the criticism that we haven’t given everyone a fair chance?”.

The revelations don’t stop there. The same accounting officer wrote of his wider concerns about “how unlegit the entire testing strand is” and stated… “I am concerned that in this area of our coronavirus response we are running at pace without any clear financial approvals and well outside departmental delegations. It [ the Covid testing programme] is a clear outlier. It is important to regularise that partly for the audit trail, partly to protect you and your teams when things go wrong and partly to provide a framework against which decisions can be made at speed.”

Emails between civil servants reveal they were told by Ministers “don’t bother with HMT and rules, just buy the stuff and we can deal with it later”. One references “No 10” trying to push through a separate deal that was “dodgy”. It’s little wonder that costs on testing quickly spiralled out of control, with the “lack of clarity on value being delivered against big contracts such as Randox”. Conservative MP Owen Paterson resigned in November after it emerged he had lobbied the Government on behalf of Randox, whilst being paid by the company. Randox has won over £400 million worth of testing contracts.

Documents revealed over the life of this case have shown, despite Ministers’ denials, that a fast-track ‘VIP route’ was created for preferred testing suppliers, just like with dodgy PPE procurement.

Ministers have struggled to get their story straight at every turn, but it’s clear to us now why they have been so backward in coming forward. Has there ever been a Government so allergic to accountability? 

The High Court hearing continues until Thursday. Thank you for your support.

When we last shared evidence of a VIP lane for testing contracts, Government told the world our claims were ‘completely false’. 

Today we can reveal astonishing new emails between civil servants that prove there was a VIP fast track to award testing contracts to firms favoured by ministers. Abingdon Health, the testing firm awarded £85m of contracts without competition, went ‘through the VIP route’. 

And as you can see from this email chain, who was their Ministerial “sponsor”? None other than ‘Lord Bethell’. 

This is just extraordinary. Ministers issued a categorical and very public denial in June that there had even been a VIP route for testing at all. But this position is now untenable. 

Until this week Government had refused to search or disclose almost all of the documents of the four most senior individuals involved in our legal challenge over the £85m contracts… were they afraid of what they might find? 

The story of Abingdon Health is yet another example of the Government’s failings on PPE and Test and Trace: lack of equal treatment for suppliers, lack of due process, and millions wasted as a result.

Government must stop misleading the public and come clean. £37 billion of public money has been set aside for Test and Test contracts – where on earth is it going?

We should not need to drag Ministers to Court to get an honest account. But make no mistake, if that’s what it takes, that’s what we’ll do. Thank you for your support.

For months, Government has been refusing to hand over evidence in our challenge concerning Abingdon Health, the testing company awarded £85 million worth of contracts without competition. Yesterday we took Government to Court to fight for this evidence – and we had a good day. 

The Judge ordered the search of Matt Hancock’s WhatsApp messages and personal email accounts. We believe this is the first time a Judge has ordered a Minister, or ex-minister, to hand over their personal WhatsApps and text messages.

In fact, the Judge seemed to share our view more generally that Government’s explanations for why they haven’t recovered information from Ministers’ devices simply do not stack up, and he ruled as follows:

• Lord Bethell must provide a Witness Statement to the Court to explain – once and for all – what happened to his phone.
• Government needs to provide a Witness Statement to the Court explaining how they are going to ensure they recover all the necessary data from Bethell’s phone.
• In addition to coughing up Lord Bethell’s private emails, Government must also trawl Matt Hancock’s personal emails and WhatsApps for relevant information as to how these contracts came to be awarded with no competition. 

We will now get to see previously hidden messages from the Ministers involved in awarding these lucrative contracts. We will also issue an application against Professor Sir John Bell in respect of his documents (to cover WhatsApp, University of Oxford emails and personal emails). He has previously refused to share any of his records, despite his hugely significant role in the contract awards. 

Will these documents shed more light on the murky goings on in the awarding of these contracts? Contracts which Ministers overruled their own legal advisors to sign, leaving taxpayers with a multi-million pound bill when it turned out the tests didn’t even work.

The Judge remarked yesterday that Good Law Project is “holding the government – correctly – to high standards of conduct, both in the awards of contracts and generally” – and we will continue to do so. 

We will be publishing more extraordinary revelations later this week.

You will recall in our hearing in July Government admitted that some of Health Minister Lord Bethell’s dealings in relation to the controversial £87.5 million testing contracts to Abingdon Health had been conducted via WhatsApp or text message, and were held only on his private mobile phone.

We wrote to Government to ask for the messages to be retrieved and preserved.

We were stunned to receive a response from Government in which Health Minister Lord Bethell changes his story, again, on why he can’t hand over the texts and What’s App messages. 

This is now the Minister’s third different version of events:

First, he claimed his phone was “lost” so he couldn’t hand it over. 

Then, a few weeks later he abandoned his tale that the phone had been “lost” and provided an entirely new explanation as to why he was no longer using it, claiming the phone was “broken”.

Now, unbelievably, he says the phone isn’t lost. Or broken. He actually passed the phone on to a family member. 

Blimey, which is it, Minister?

It’s far from clear that personal phones used extensively for Government business can safely be handed over to family members – one assumes children. What steps did Lord Bethell take, for example, to ensure that highly sensitive material couldn’t be retrieved by a specialist? And if he did delete it, did he ensure he’d passed on all the relevant information to the Department of Health before doing so? 

And the extraordinary change of story doesn’t stop there. 

Back in June, No 10 issued a blanket denial that Ministers ever used private email accounts for Government business. But now their own lawyers have confirmed searches of Lord Bethell’s three private email addresses using keywords relating to Covid contracts turned up hits of between 18,000 and 36,000 separate documents that may be relevant to the case. 

How on earth do we move from a blanket denial by No 10 that Ministers were using private email accounts for Government business, to an admission that a single Minister may in fact have used his private email for tens of thousands of official emails? Do they ever tell the truth?

We are fighting to get our hands on these messages. We will be able to reveal further twists in this extraordinary tale soon.

Lord Bethell is the Health Minister responsible for overseeing the award of Covid contracts. His time as Health Minister has been mired in controversy: from failing to declare meetings with firms that won huge Government contracts, to using his personal email address to conduct Government business. Good Law Project has a particular interest in the role he played in the controversial award of lucrative contracts to Abingdon Health.

Last week in Court, we argued against the Government’s attempts to apply blanket redactions to documents relating to the Abingdon Health contracts. We were successful – an important step towards transparency.

But the hearing uncovered something more alarming. In sworn evidence, Government admitted that some of Lord Bethell’s dealings with Abingdon had been conducted via WhatsApp or text message, and were held only on his private mobile phone. If that was the case for Abingdon, why not other VIPs too? 

What’s more, in December last year, Lord Bethell was told his mobile phone would be searched for documents relating to this case. Just weeks later, it seems, he ‘replaced’ his phone because, Government lawyers say, it was ‘broken’. They are now not sure it will be possible to retrieve the WhatsApp and text messages.

Lord Bethell has overseen the awarding of billions of pounds of public contracts. Information revealing how these contracts came to be awarded may now be lost – or even destroyed.

During the hearing, the Judge expressed alarm about the Government’s failure to preserve evidence and insisted the ‘Order’ he made at the conclusion of the hearing refer to the Government’s obligation to preserve relevant documents.

Our lawyers have written to the Government to demand answers. When did Bethell learn his phone would be searched? When did he report it as broken? What attempts were made to save crucial information from his old phone? If none, why not?

This Government seems allergic to scrutiny: redacting some documents, hiding others from public scrutiny via ‘confidentiality rings’, permitting Ministers to award billions in public money via private, as well as official, channels, and failing to protect evidence from destruction.

We are taking action to close this accountability gap. If you're in a position to do so, please consider donating to support this challenge. 

We are pleased to tell you the Court has granted us a costs capping order in this judicial review.

A few months ago, Government informed us of its estimated costs for the hearing, a two-day judicial review. It told us it was planning to incur costs of £770,000.

We are becoming all too used to Government’s elevated costs estimates. We immediately asked the Court for a costs capping order to ensure that we could continue with the case. Government insisted its costs were reasonable and appropriate.

After hearing from both sides, the Court stated that Government’s estimated costs “are too high for a two-day judicial review”. It has now ordered that there should be a cap on the costs of both sides of £170,000.

The Court also found that these issues are important to be litigated, saying that “the contracts are very valuable indeed and such matters are in the public interest to be determined by the courts.”

Nonetheless, if we lose the case, we will still be liable for our own costs as well as those of the Government. And the costs cap imposed, while a far more reasonable sum than Government’s untrammelled costs, is still more than we have raised so far.

The case will be heard in the autumn this year. If you are able to donate to support our challenge, please consider doing so.

Last week, the High Court granted permission to advance our case against Government for its award of contracts to Abingdon Health for rapid antibody tests. The deal with Abingdon Health has been marred by controversy since the very beginning, with Government suppressing reports that raised the alarm around the effectiveness of the tests and ignoring their own legal advice on the lawfulness of the contracts.

The High Court has now agreed that we can argue our case on the following grounds:

• there was apparent bias in the award of contracts by Government, given the role the Government’s own scientific advisor Professor Sir John Bell played in securing the deal for Abingdon Health. The Judge observed that Professor Sir John Bell was on ‘both sides of the contract’, given his role both as a key Government advisor and also as a significant figure in the UK Rapid Testing Consortium, which acted as subcontractor to Abingdon Health; 
• Government awarded the contracts to Abingdon Health unlawfully by giving preferential treatment to Abingdon Health because it was a British company; 
• the decision to award the contracts to Abingdon Health breached the obligations of equal treatment, transparency and proportionality because Government failed to undertake any transparent or lawful process at all in respect of the award of the contracts;
• the contract awards led to the grant of unlawful state aid (including Government subsidies for research and components), for which no justification whatsoever has been put forward;
• Government acted irrationally when awarding contracts to Abingdon Health. In particular, the first contract stated that the tests had to be tested and deemed fit for use by the regulator by a certain date. The date came and went without the tests being validated, yet Government pressed ahead with another contract. 

The full transcript of the judgment can be found here. 

Until now, Government has refused to engage meaningfully with our case. It was noted several times by the Judge that it was not possible to consider points in detail because of the lack of evidence provided by Government. But the Court’s decision last week means that Government will no longer be able to fob us off. In particular, it will be forced to disclose details of the decision-making process – and the role of Professor Sir John Bell – as part of these proceedings. 

It is perhaps not surprising then that Government is once again estimating an eye-watering bill to defend this case – around £670,000. Despite these huge costs, we will not be deterred. We have applied for a cost capping order so we can continue to push for answers.

This deal has been shrouded in mystery since the very beginning. If you are in a position to donate to the legal challenge, you can help uncover the truth.

We recently revealed Government had cancelled all orders with Abingdon Health for antibody lateral flow tests because it had failed to gain approval from the MHRA for home use of those tests. 

This week, an explosive story in the Daily Mail revealed that “On April 6, Mike Batley, the Department of Health and Social Care’s deputy director of research, wrote to senior colleagues warning that although Lord Bethell and Mr Hancock already seemed to have approved the deal, ‘this all happened over the weekend without any engagement with us’. It was, he added, ‘no way to do business’.’”

You can read the full story here. 

We have long thought the award of contracts to Abingdon Health was unlawful. That is why, some months ago, we took the decision to bring judicial review proceedings. However, Government continues to resist those proceedings and so we must continue to pursue them.

It’s only possible to take on this case thanks to the support of hundreds of people.

On 21st January, Government wrote to our lawyers to say that they had cancelled, with immediate effect, all outstanding orders placed with Abingdon Health for antibody lateral flow tests, because they had failed to gain approval from the MHRA for home use of those tests.

Government also confirmed that they won’t be placing any more orders under their existing contract with Abingdon Health.

Abingdon Health did not disclose this to the market when it issued a trading update yesterday.

The letter from the Government Legal Department can be read here. 

We expect to make further, shocking, disclosures about Government and Abingdon’s conduct in this case over the coming period. It’s only possible to take this case thanks to the support of hundreds of people.

So much, so very much, is wrong with the Government’s decision to contract with Abingdon Health.

As we understand matters, Government gave, without competition, substantial public contracts to develop Covid-19 antibody tests to a company which had no tests, ignoring established operators. We believe these contracts were worth £85m but it’s proving hard to pin Government down. Government took a cut of the revenues from the tests, which didn’t do what they were supposed to, and Government has – there’s no polite way to put this – lied about what it did.

The detail of those allegations is contained in our detailed grounds and my witness statement. They make for startling reading – and I encourage you to read them. But we want to focus here on what looks to me like Government’s stark attempt to rewrite history.

The Government’s National Testing Strategy has five “pillars”. Pillar 3 is described as “Mass-antibody testing to help determine if people have immunity to coronavirus.” And Pillar 4 is “Surveillance testing to learn more about the disease and help develop new tests and treatments.” 

On 8 April 2020 Government put out a Press Release which stated:

“A business consortium, UK Rapid Test Consortium (UK-RTC), including Oxford University, Abingdon Health, BBI Solutions and CIGA Healthcare has launched, in order to design and develop a new antibody test to determine whether people have developed immunity after contracting the virus.”

Government then issued two “contract award notices” announcing spending with Abingdon. The first, giving a figure of £10.3m, was in respect of an award of 2 June 2020 and said:

“Provision of components and materials for lateral flow test kits for Covid-19 for use as part of the UK Covid-19 Testing strategy in support of Pillar 3 – antibody testing.”

The second, on 14 August, giving a figure of £75m, you can see here and it says:

“Provision of lateral flow test kits for COVID-19 for use as part of the UK Covid-19 Testing strategy in support of Pillar 3 – antibody testing.”

However, a Government press release of 6 October announcing the purchase of 1 million tests from Abingdon said:

“British-made antibody testing kits will support nationwide surveillance studies to track the spread of COVID-19 in the population.”

Which is pillar 4. The reasons for that after the event switcheroo are likely to be that the test was not as accurate as key Government advisors had previously indicated, a fact that was both anticipated, and which Government had sought to suppress.

But here’s the bad bit.

On 12 November 2020, Abingdon Health issued a press release which contained a statement from the Department for Health in the following terms:

“This report shows these tests are approved for use in surveillance studies, which is what they were purchased for.”

“They were never intended for, and have never been issued for widespread public use and it is misleading and unnecessarily inflammatory to purposefully ignore this fact in the report.”

It might be convenient to try and rewrite history. It might suit both Abingdon and Government to pretend that the tests purchased were not antibody tests under Pillar 3. It might spare both sides’ embarrassment. It might be convenient – but the facts show it isn’t true.

As I say, please read our detailed grounds and my witness statement. This is by no means the only extraordinary feature of the Abingdon Health story. 

Jo Maugham