The Royal Courts of Justice in central London have for months played host to a subplot of the Covid-19 crisis – ministers potentially in breach of the law.
So far, High Court judges have ruled that three cabinet ministers – Education Secretary Gavin Williamson, Health Secretary Matt Hancock and Cabinet Office minister Michael Gove – have acted unlawfully in their responses to coronavirus.
Covid-19 contracts and child safeguards
Last November, the Court of Appeal ruled that Williamson acted unlawfully by removing safeguards for children in care at the start of the pandemic without consulting children’s rights organisations.
In February, Hancock was found by a High Court judge to have acted unlawfully by failing to publish multibillion-pound Covid-19 contracts within the legal 30-day period.
Last week on 9 June, Gove was found to have broken the law by awarding a £560,000 contract to a communications company called Public First, which is run by associates of himself and Dominic Cummings – a decision tainted by “apparent bias and was unlawful”, according to the High Court decision.
What happens when ministers break the law?
Voters may expect some punishment, or resignations. The average member of the public, after all, cannot blithely break the law without sanction. Yet when the work of government is found to be on the wrong side of the law, there appear to be fewer consequences.
Ministers through the work of their departments and their role running them are “frequently found to have acted unlawfully when judicial review goes against them”, says constitutional expert Dr Catherine Haddon, a senior fellow at the Institute for Government. This is a “normal part of government” and some of the coronavirus cases are “similar in type to that, for all the drama around them”.
Consequences can range from a change in policy or law, pay-outs, or simply as a block against the government acting the same way again.
“There is more of a focus in these cases on the ministers in question, and when it is about their behaviour and decisions specifically in the case, it of course carries more weight than if it is the government or department in general that is seen to have erred,” Haddon adds.
But “there is a general feeling that a minister’s accountability is first and foremost to parliament”.
Will Gavin Williamson, Matt Hancock or Michael Gove resign?
It is “rare” for ministers to break the law knowingly, says Alex Thomas, the former principal private secretary to the late cabinet secretary Jeremy Heywood, and an experienced civil servant who is now programme director at the Institute for Government.
“They might know that a course of action was of high legal risk, but if they know for certain that it’s unlawful then they shouldn’t do it.” A recent example is when ministers pursued the prorogation of parliament in 2019, which the Supreme Court ruled was unlawful. “It was legally questionable but reasonable to pursue and test in the courts,” reflects Thomas.
(Such cases are separate from those that are a matter of personal conduct, when politicians are found individually to have broken the law.)
After Hancock was found to have acted unlawfully, the Justice Secretary Robert Buckland argued that “getting something wrong is not the same as deliberately flouting the law”.
“Every day, every month, there are cases bought against the government about whether it has acted lawfully or not,” he told ITV’s Good Morning Britain at the time. “There are plenty of times when the court says no.
“The important thing is for the government to act according to the ruling of the court… If the government carries on ignoring the rulings and breaking the law, that would be unacceptable.”
Yet Hancock refused to apologise for – or resign over – his unlawful actions, and dismissed the ruling against him as simply relating to “delayed paperwork”.
This is a familiar attitude among ministers who have made catastrophic mistakes or acted unlawfully over the course of the pandemic.
The Cabinet Office appeared to dismiss last week’s ruling too, claiming the judgement made clear “there was no suggestion of actual bias” (even though that wasn’t the case against it).
“I’ve got no difficulty with Buckland’s binary. The problem is that ministers sit inside it: showing too little interest in whether their actions are lawful,” says Jolyon Maugham QC, a barrister and director of the Good Law Project, the organisation which took Gove and Hancock to court.
“You and I comply with the law because there are serious consequences if we don’t. But when ministers break the law, they don’t apologise or resign. They tend to shrug their shoulders and – as with Gove last week – dissemble victory. To the outside world, it looks as though they have lost all interest in whether their actions are lawful or not.”
The requirement for a politician to resign over legal breaches during the pandemic is a political judgement. Aside from a purge last November of No 10 advisers such as Cummings and Lee Cain, heads have yet to roll as a result of the Covid-19 crisis.
“The concern for those of us watching government is whether we are starting to see a pattern of behaviour in these cases,” says Haddon.
“It is the cases themselves and the revelations they bring that are therefore important because they are shining light on government activity, upholding transparency, forcing disclosures and reminding ministers that they have to be able to defend their actions.”