This was a big week for Britain’s Good Law Project, as they were able to persuade a court to scrutinise former Health Secretary Matt Hancock and former health minister Lord Bethell on their handling of coronavirus contracts in 2020.

Matt Hancock resigned in June 2021 and Lord Bethell was removed from his ministerial post in the House of Lords at last week’s reshuffle.

The Good Law Project doesn’t always win their cases, but this will be one to watch.

I do not often agree with their views but, in this case, I wish them well.

Lord Bethell

Having seen enough proceedings in the Lords, I thought that Lord Bethell was doing a competent job representing the Government.

However, during the summer, questions were asked about the mobile phone he was using last year when the pandemic was raging. Bethell gave various answers as to the whereabouts of the phone:

He allegedly used WhatsApp to communicate with potential suppliers:

His phone was taxpayer funded. As such, it seems he should have returned it to Procurement:

The accompanying article from the Good Law Project states (emphases in purple mine):

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 this 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 … 

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.

On Tuesday, September 21, the Good Law Project was in court to pursue the case:

The Government conceded that Bethell would have to provide a witness statement. The court hearing was to stipulate the content of that statement:

The accompanying article from crowdjustice gives more information on what happened in 2020:

The Government suppressed an official report that proved there were issues with rapid antibody tests purchased by the Department of Health. Leaked emails reveal the Government blocked Public Health England from publishing their findings until after they could make an announcement that they had purchased one million antibody tests from Abingdon Health.

The purchase of one million antibody tests from Abingdon Health has been shrouded in mystery, but what we do know lays bare serious failings in Government procurement.

The Government supported the creation of the UK Rapid Test Consortium (UK-RTC) back in April. The idea was that the companies and institutions involved, including Abingdon Health, would create a rapid antibody test. On 2nd June, Government awarded a contract worth £10million to Abingdon Health for the materials needed to produce the test. On 14th August, they handed Abingdon Health another contract worth a staggering £75million.

Despite these huge sums of money, Government seems to have ignored widely held concerns that these tests were not fit for purpose. So a £75million contract was awarded without competition, on the basis of profoundly flawed research. And when confronted with evidence of these flaws Government tried to suppress publication of that evidence.

These are serious charges and we have set out the publicly available evidence in this chronology, which we will update as more evidence is published.

Judge agrees

The judge hearing the case on September 21 agreed with the Good Law Project:

The Good Law Project’s article says:

… 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. 

Matt Hancock

Following this announcement, the story received quite a lot of coverage in the media, with photos of Matt Hancock splashed all over Twitter.

The London Economic had this:

Their article said:

Former health secretary Matt Hancock will have his personal WhatsApp and emails searched as part of a High Court battle over millions of pounds’ worth of antibody test contracts.

The Good Law Project has brought legal action against the Department of Health and Social Care (DHSC), claiming that more than £80 million in contracts for antibody tests were awarded unlawfully.

The bid covers three contracts awarded to Abingdon Health which the group claims were given in April, June and August 2020 but were not published until October 2020.

“The contracts were awarded directly, and secretly, without any advertisement or competition,” the Good Law Project’s barrister Joseph Barrett said in written arguments.

The group also argues that the contracts “comprise very substantial unlawful public subsidies”.

The Daily Mail had more:

Claiming Mr Hancock was the “ultimate decision-maker” in awarding the contract to Abingdon Health, Mr Barrett told the court that Mr Hancock had used multiple non-government emails for Government business. However, no searches had been conducted and no documents had been disclosed.

Mr Barrett alleged that DHSC had “either destroyed or otherwise put beyond recovery or refused to search or disclose almost all of the repositories and documents of the four most senior and important individuals in the case”.

Philip Moser QC, for DHSC which is contesting the claim, argued Mr Hancock had a “limited” role in the contracts.

“There is no reasonable basis on which to seek such disclosure, because Mr Hancock’s involvement in the matters which are in issue in these proceedings was limited and, in any event, any communications from the then Secretary of State would have been caught by the existing disclosure exercise,” he said.

Mr Justice Fraser ordered that both Mr Hancock’s Government and non-Government communications that were used for Government business should be searched for relevant material.

The judge said: “It seems to me that even though his involvement has been described as ‘limited’, ‘limited’ can still be quite significant.”

CityA.M.‘s coverage says that Lord Bethell’s phone is now with ‘disclosure consultants’:

Government lawyers previously said the old phone had been “broken” six months ago and that data held on it was not contained on the replacement.

The lost information was reported to have included WhatsApp and SMS messages.

The court also heard that Lord Bethell’s phone is currently with “disclosure consultants” to determine whether his WhatsApp messages can be retrieved.

A spokesperson for the former health secretary said: “Hancock had no involvement in the awarding of this contract, or indeed any other contracts. They were all awarded through formal processes, as the National Audit Office has confirmed.

“At the time, everyone in the Department of Health and Social Care was working every hour to respond to the pandemic and boost testing capacity. Any suggestion of wrongdoing is completely false.”

The full trial is due to take place from December 6.

Scotland’s The National reported on the to-ing and fro-ing between the judge and the Government’s legal counsel, Philip Moser QC:

Philip Moser QC, for DHSC which is contesting the claim, argued Hancock had a “limited” role in the contracts.

“There is no reasonable basis on which to seek such disclosure, because Mr Hancock’s involvement in the matters which are in issue in these proceedings was limited and, in any event, any communications from the then Secretary of State would have been caught by the existing disclosure exercise,” he said.

Justice Fraser ordered that both Hancock’s Government and non-Government communications that were used for Government business should be searched for relevant material.

On the topic of disclosure, The Mirror’s tweet alleges that the Department for Health and Social Care (DHSC) had previously refused to pursue it:

And there’s more

The Government has always claimed that there were no fast-track routes to winning a contract.

However, on Thursday, September 23, The Guardian reported about emails referring to a ‘VIP route’ for coronavirus testing contracts:

The Guardian reported:

… internal emails between DHSC civil servants, discussing the Rapid Testing Consortium (RTC), a group of companies led by York-based Abingdon Health, which was awarded huge government contracts without a competitive tender, did describe the process as “the VIP route”. The then health minister, Lord Bethell, was described by officials as a “sponsor” of the consortium.

The DHSC disclosed the June 2020 emails during a legal challenge brought by the Good Law Project (GLP), which argues there was “apparent bias” in the award of the contracts to Abingdon Health, and that the government “failed to undertake any transparent or lawful process”. The DHSC is defending the case, arguing that the emergency of the pandemic justified it making direct contract awards.

In the email exchanges, one civil servant, discussing how to process the RTC companies, said a person in authority, whose name is redacted, “would like them to go through the VIP route”. The official asked: “Who should they name as their sponsor?”

A colleague replied: “Are the sponsors usually ministers? I would imagine RTC can name Lord Bethell?”

In a further email referring to the RTC, another official wrote: “This is usually for the VIP route which comes via ministers.”

Asked by the Guardian about these references to a VIP route, the DHSC did not maintain its previous denial. Instead a government spokesperson said: “All offers of testing supplies that were evaluated by DHSC went through the same clinical evaluation process. Every application went through robust assessment checks, and decisions were based on merit.”

As for Abingdon Health, founded in 2008:

The company has emphasised that it and its directors did not have Conservative party membership or connections, that the government asked them to contribute to the Covid response, and they were not aware if there was a fast track process.

Having been first contacted on 22 March 2020 by an adviser to Public Health England, Abingdon said they were asked to email the general DHSC and NHS Covid testing and research email addresses. On 1 April, the company was contacted by Prof John Bell, a senior government adviser on testing, and on the same day asked to join a conference call with the then health secretary, Matt Hancock. Following discussions with Bethell and other senior government figures, Abingdon then formed the RTC and were initially given a £3m research contract.

The other contracts followed on from there.

It is fortuitous for the Government that Parliament is in conference recess from 5 p.m. today until late October. Otherwise, a few Urgent Questions would probably have been scheduled.

As they say in journalism: ‘The case continues’.

The full trial starts on December 6.