ANOTHER day, another court ruling against the UK Government.
Or so it seemed as the English High Court issued its judgment yesterday, ruling that there had been “apparent bias” in key decision making of Boris Johnson’s administration during the early days of the 2020 Covid crisis. Their behaviour was unlawful.
The awarding of contracts related to Covid have been under intensive scrutiny in the last few months. Claims of cronyism, “chumocracy” and corruption have been thrown about as the Conservative government have awarded millions of pounds of public money to former business associates, friends and family.
This case brought by the English-based Good Law Project brought all these issues to the fore. It focused not on the life and death issue of health service procurement but the seemingly more anodyne world of government communications and focus groups.
The research company which was paid by the Government to consult the public on health messaging in the early months of the pandemic were Public First. Its founders were friends of Dominic Cummings – then the key adviser to the Prime Minister.
One of them, James Frayne, had worked with Michael Gove and Cummings at the Department of Education during the coalition government of 2010-15. He had also been a long-standing political campaigner against adopting the Euro and English devolution, passions both shared by Cummings.
The High Court was asked to examine the decision to award a six-month contract to Public First without any form of public tendering exercise. This amounted to over £500,000.
The process was a judicial review – this means that the substance of the decision is not explored, but rather the way in which the decision was made. In the words of the judge Justice O’Farrell the court does not “substitute its own decision as to what was required by way of response to the Covid-19 pandemic”. But it is there to ensure that the response chosen by the decision maker was legal.
The UK Government defended its decision to award the contract to Public First with no public scrutiny on the basis that, essentially, we were in unprecedented times and things needed to be done quickly.
READ MORE: UK Government broke the law by handing Covid contract to Dominic Cummings's chums
In the words of Cummings’s witness statement “it would have been foolish and deeply unethical to delay procurement by even 24 hours given the situation we faced in February 20”. Public First were already providing similar services to the Government at that time, albeit on a more limited contract. The argument went that it was simpler to award it without a public procurement process.
The court agreed with this and that the emergency required an immediate response. For example, Public First tested the slogan “Stay Home. Protect the NHS. Save Lives.” So they accepted the absence of a public tendering process. Justice O’Farrell also accepted the Government’s arguments that the six-month contract awarded was not too long and the arguments from the Good Law Project challenging the time were “essentially based on hindsight”.
Where the unlawful action of the Government comes in is not in the process of awarding contracts in an “emergency”, but to who they awarded them. The long association of Cummings with the key figures in Public First had an appearance of “apparent bias”.
This phrase does not mean that there is evidence of actual bias in making the decision – which could in some circumstances be a criminal offence – but that a “fair minded and informed observer” looking in from the outside would conclude that there is a real danger of the decision maker being biased.
READ MORE: Good Law Project boss criticises BBC for 'curious' interview with him after ruling
This outsider test is an objective one which the judge said had been failed here. The personal relationships of Dominic Cummings were “relevant” and could be “perceived to compromise impartiality” in awarding a contract.
In the court’s view there should have been objective criteria laid down and Public First measured against it, along with other potential agencies that could have done the job of organising focus groups and research on government communications. Essentially the failure to consider any other company on an objective basis made the process unlawful.
As his recent Westminster appearance showed, Cummings is trying to distance himself from the UK’s Government response. But his desire to work closely with people he knows and to award them public money has come back to haunt him with this High Court ruling.
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