Winning court cases won’t stop the Tories… it’s time for a change in tactics

The problem is largely that the actual court case decided almost nothing of the sort – and a close look at the ruling itself, rather than press releases about it, reveals it is perhaps a much smaller deal than many people have been led to believe. This disconnect comes partly from the Good Law Project, the campaign group which took the case, hyping it well beyond the grounds of responsibility – not quite giving the false impression in the above paragraph, but making it quite easy for people to put two and two together to make 20.

In reality, this legal challenge did nothing to examine how pandemic contracts were awarded or whether they offered value for money. Instead, it challenged the Department of Health’s compliance on a legal requirement to publish details of awarded contracts within 30 days.

The court found that this had indeed been breached in hundreds of cases, especially early in the pandemic, with an average publication time of 47 days. This has since improved, and most new contracts are now posted within the 30-day limit. The court made a ‘declarative’ ruling, which essentially means the court agreed that the 30-day limit had been broken. It had no further effect beyond that.

If that sounds underwhelming, it’s because – quite frankly – it is. While the 30-day requirement should be met, in the interests of transparency and accountability, many members of the public will think it’s not unreasonable that it might be delayed a little during the early months of a pandemic, which had caught the government woefully under-prepared and in desperate need of essential goods and services.

Beyond that, the government could simply have added a line in any of the emergency legislation it passed removing that requirement temporarily (or raising it to, say, 90 days) and it wouldn’t have broken the law. The disclosure that it breached the 30-day requirement was not evidence of some illegal cover-up. Had it been a planned cover-up, the government could have been done much more, easily and legally.

That’s not to say there aren’t questions about pandemic procurement that should be answered, whether through parliamentary inquiry, public inquiry, or journalistic investigation. It is simply being honest in saying this case had absolutely nothing to do with providing any answers on them.

What harm does it do, though? Surely it’s better to have cases like this that are trying to provide some opposition to the government, and to hold ministers’ feet to the fire. It’s a principle of accountability, so should we not cheer it on?

There are several arguments against that – not least that when you stop to think about the effect of this type of case on public trust and confidence, it is profoundly disempowering. Regardless of what the case was actually about, many people have been left with the impression that here was a court finding evidence of corruption or law-breaking on behalf of a cabinet minister – and that nothing happened to that individual as a consequence.

At minimum, that suggests a level of corruption well beyond that matched by reality – the idea that a court would rule that a minister acted unlawfully then do nothing, that the opposition would then go along with that cover-up, and that the media would let them. Given that impression, some people will simply give up. Our politics and society would seem a lost cause, not worth fighting for. Overhyping something like does not provide motivation. It does the opposite.

There are other reasons to be wary of bringing political cases like this to court. It is often worse to do something ineffective than it is to do nothing. Ineffective activism can crowd out and muddy the picture against real action. If people have contributed to the crowdfunder that led to this case, and have seen this court victory, they may believe they have done their bit in investigating the probity of those controversial PPE contracts – despite the case having nothing to do with that.

People have a finite amount of time, finite money, and a limited number of political causes they can take on. If you want to generate real change, that resource needs to be well directed. In this case, there is cause and need for a real public inquiry on numerous issues around the pandemic. Does this help that, or rather just distract from it?

There is also a risk that this kind of legal activism plays perfectly into the government’s hands. This is an administration which is trying to sell a narrative of elite lawyers and out-of-touch judges blocking the common sense reforms Britain needs to succeed.

Generally speaking, if someone is trying to outlaw crying wolf, it’s probably not a good time to start crying wolf on a regular basis – especially not if all you’ve actually seen is a Dalmatian puppy. Judicial review can be an important tool to protect rights and stop government overreach. Protecting it means not overusing it when the government is already desperate to limit it.

If we believe government has a positive role to play in society – in other words, if we are not low-tax libertarians – we should also be careful what we wish for if we think all rulings that decisions are ‘unlawful’ should result in resignations.

The laws governing what central government and local councils can do are byzantine and it is not especially unusual for decisions to be found to be unlawful (especially in planning). Pretending that isn’t the case and that any such ruling could be career ending seems an excellent way to paralyse government to the point of ineffectiveness, thus eventually eroding the state. That does not seem like the desired end goal of many of the people supporting these actions.

Courtrooms should not become an extension of the parliamentary stage. It should be a big deal when they get drawn into politics and it should be to prevent outrageous abusers of power: the successful case against Johnson’s prorogation of parliament was just that.

Bringing trivial cases directs funds, energy and activism to the wrong causes, to the detriment of us all. The results are all too often just a day or two of press attention for the lawyers involved, with no advancement of the supposed cause. Keir Starmer is now facing flak for not calling for the resignation of the health secretary – despite the fact that he would have damaged his own credibility if he had, given he understands the case and is a lawyer. Similarly trust in the media and even the courts ends up undermined. Who actually benefits from it?

Our final lesson should be drawn from the extended courtroom activism around Brexit, now that the dust has settled. Cases backed by Remain-supporting groups won time and again in the courts, to much excitement and drama. We just kept winning!

We are now far enough in the future to see where that got us: in practice, it was one of the factor that helped to hand Boris Johnson his thumping majority. If anything, it led to a much harder Brexit than the ones previously on the table. And it made a compromise Brexit, for the brief period that was possible, much harder to try to land.

We won the court battles and didn’t even notice they were meaningless. And all the why Leave got on with winning the political war. Surely, it’s time for a change in tactics.

What do you think? Have your say on this and more by emailing letters@theneweuropean.co.uk