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Why the systems that decide who gets healthcare, benefits and payments are now governed by private agreements rather than laws you can

Editorial Analysis | October 2026

‘The “Contract” is now the “Constitution” as the architecture of identity, allocation and payment is being settled in commercial agreements that legislatures rarely examine and courts are reluctant to review‘

The constitutional settlement governing access to identity, payment and public data is being negotiated in procurement contracts rather than in statutes, and the legal framework within which those contracts operate systematically insulates them from public law scrutiny. English courts have traditionally treated government contracts as ordinary private law arrangements, and judicial review is available only in limited circumstances where a public body’s contracting decision is infected by fraud or bad faith. The practical consequence is that decisions about who operates the infrastructure of public administration, on what terms, and with what remedies for affected persons are made in documents that are commercially confidential and legally private. Two contemporary cases illustrate the pattern: the NHS Federated Data Platform contract with a Palantir-led consortium, valued at approximately £330 million over seven years, and the US Department of Defense’s Maven Smart System contract, which reached a ceiling above $1 billion in 2025. The analysis argues that the displacement of public law by private contract constitutes a transfer of sovereign authority that no electoral mandate has authorised.

The traditional doctrine of English public law holds that a government contract is an ordinary private law arrangement, and the courts have been reluctant to extend judicial review to commercial decisions taken by public bodies. The Privy Council stated in Mercury that it did not seem likely that a decision by a state enterprise to enter into or determine a commercial contract to supply goods or services would ever be susceptible to judicial review, and subsequent cases have generally followed that approach (Stoke-on-Trent, 1994). The doctrine reflects a concern that subjecting commercial decisions to public law review would undermine the certainty that contracting parties require, and its effect is to place a significant category of public decisions beyond the reach of the administrative law principles that govern other exercises of public power. The consequence is that the terms on which the state acquires the infrastructure of public administration are treated as matters of private bargaining rather than as exercises of sovereign authority.

The NHS Federated Data Platform contract illustrates how this doctrine operates in practice. NHS England awarded the contract to a consortium led by Palantir Technologies UK in November 2023, and the value was stated in a written parliamentary answer as approximately £330 million over a seven-year period, providing funding for up to 240 NHS organisations (UK Parliament, 2026). The contract is a major national digital infrastructure programme and is formally part of the Government Major Projects Portfolio, which means that it is subject to the assurance and value-for-money standards that apply to major projects. The programme’s projected benefits were stated at £777 million in transparency data published in August 2025, and the senior responsible owner’s delivery confidence rating was recorded as green, the highest available (UK Parliament, 2026). The contractual terms, including the data access provisions and the liability arrangements, are not published in full, and the public law remedies available to patients whose data is processed through the platform are limited by the private law framework within which the contract operates.

The Maven Smart System contract illustrates the same pattern in the domain of military targeting and intelligence. Palantir has been the primary industry partner for Project Maven since Google withdrew in 2018, and the Department of Defense’s contract ceiling for Maven surpassed $1 billion in May 2025 (CSIS, 2026). The system was used during the first twenty-four hours of the war in Iran to help strike more than 1,000 targets, a tenfold increase over what was possible in the pre-Maven era (CSIS, 2026). The contractual arrangements that govern the system’s operation, including the allocation of responsibility for targeting decisions, are not matters of public law, and Palantir has stated that the military bears responsibility for the use of its software (DataConomy, 2026). The result is a division of labour in which a private firm supplies the analytical layer and a public authority supplies the legal authority, and the boundary between the two is defined by contract rather than by statute.

The constitutional significance of these arrangements lies in the fact that the state is transferring the operation of core public functions to private entities while retaining formal legal authority. The private entity determines the technical parameters within which the function is performed, and the state retains the formal power to decide. The distinction between the two is not always clear in practice, because the technical parameters constrain the range of decisions that the state can make, and the private entity’s commercial interests shape the design of the system. The contractual framework within which this occurs is not subject to the transparency requirements that apply to legislation, and the disputes that arise are resolved through arbitration or private litigation rather than through public adjudication.

The displacement of public law by private contract is not a new phenomenon, and its acceleration in the digital domain reflects the increasing technical complexity of public administration. Governments lack the in-house capacity to build and operate large-scale data and payment systems, and they therefore acquire those systems from firms that possess the requisite expertise. The acquisition is governed by procurement law, which is concerned with competition and value for money rather than with the constitutional implications of the arrangement. The result is a system in which the state’s operational dependence on private firms is matched by a legal framework that insulates the resulting arrangements from the scrutiny that would apply if the same functions were performed directly by public authorities.

The remedy for this condition is not the abandonment of private contracting but the extension of public law principles to the contractual arrangements through which public functions are performed. Procurement legislation could require the publication of contractual terms that affect access to public services, and it could establish statutory remedies for individuals whose access is denied or conditioned by a contractor’s decision. Judicial review could be extended to contracting decisions that engage fundamental rights or affect access to essential services, and the courts could develop doctrinal tests that distinguish between ordinary commercial transactions and contracts that perform a public function. The company town was dismantled because the law recognised that provision by a single private authority was incompatible with citizenship, and the same recognition is required for the contractual arrangements through which contemporary public administration is conducted.

Authored By: Global GeoPolitics

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Reference

CSIS (2026) What Is Maven Smart System, and What Does It Do? Washington, DC: Center for Strategic and International Studies.

DataConomy (2026) ‘Not our role: Palantir shifts blame to military for AI-driven targeting deaths’, DataConomy, 2 April.

Stoke-on-Trent (1994) Mercury Communications Ltd v Director General of Telecommunications, cited in Modern Government, Stoke-on-Trent City Council.

UK Parliament (2026) Written Questions and Answers: NHS Federated Data Platform Contract, 20 February 2026. London: House of