Kieron Spoors: A Case Note and Analysis – R (Good Law Project) v Minister for the Cabinet Office [2021]

(a) Introduction

The judgment in R (Good Law Project) v Minister for the Cabinet Office [2021] EWHC 1569 (TCC) (“Public First”) concerned Michael Gove’s decision, as Minister for the Cabinet Office (“Defendant”), to award a contract for communications support during the COVID-19 pandemic to Public First Limited (‘PFL’). The Defendant relied on the emergency procedure under Regulation 32(2)(c) of the Public Contract Regulations 2015 (“PCR 2015”). Both the Defendant and the Prime Minister’s former adviser, Dominic Cummings, had previously worked with members of PFL, the latter recommending the services of the agency.

With Dominic Cummings’ appearance before a House of Commons select committee, and a public inquiry on the horizon, this decision will form part of the ongoing scrutiny of the Government’s conduct during the COVID-19 pandemic.

(b) The main issues before the High Court

Good Law Project (“Claimant”) brought judicial review proceedings, advancing three grounds of challenge:

  • That there was no basis for making a direct award under reg.32(2)(c);
  • That the award of the contract for a period of six months was disproportionate;
  • That the decision to award the contract to Public First gave rise to apparent bias contrary to principles of public law.

The Claimant was granted standing, and succeeded only on the third ground.

(c) Arguments and Decision

(i) Reg.32(2)(c)

When awarding a public supply or service contract, contracting authorities must comply with the procedures in the PCR 2015. This includes the requirement for publication of public procurement competitions, and rules for submission of tenders (see reg.26). However, reg.32(1) stipulates that authorities may award contracts without prior publication in specific cases. These include, under reg.32(2)(c), where for reasons of “extreme urgency” brought about by “events unforeseeable,” the time limits for competitive procedures with negotiation cannot be complied with. 

The Claimant argued that there was no basis for making a direct award under reg.32(2)(c) because the Government already had existing contracts with other suppliers. The Defendant argued that reg.32(2)(c) was satisfied – the provision of services by PFL was necessary to address the public health risks posed by the COVID-19 pandemic.

The High Court held that the use of reg.32(2)(c) was a “departure” from the normal requirement for a competitive process, and should be reserved for “exceptional circumstances” ([87]). Nevertheless, Mrs. Justice O’Farrell determined that the Defendant had acted as a matter of “extreme urgency” ([99]). The Claimant’s submission about existing suppliers was rejected: the Defendant was free to obtain services from an agency it did not have existing contracts with ([109]). The High Court also held that the Defendant could not foresee the extent or duration of the pandemic ([117]). Considering the urgency of the pandemic, and the necessity of communication to change public behaviour, the High Court held that the Defendant was entitled to rely on reg.32(2)(c) in awarding the contract to PFL ([124]).

(ii) Proportionality

The Claimant argued that the award of a six-month contract was disproportionate. It should have been restricted to the Defendant’s short-term needs, pending a competitive process to procure a longer-term service. The Defendant argued that it was not disproportionate – the scale of the pandemic meant that the Defendant could not risk the contract expiring before the crisis peaked.

The High Court held that the contract’s length was not disproportionate. Reg.32(2)(c) did not limit the duration of any contract to the shortest time required to conduct a competitive procurement exercise ([117]). Mrs. Justice O’Farrell applied the reasons in relation to Ground 1 ([131]), where it had been observed that the gravity of the situation during March and April 2020 gave no comfort that the crisis would be over imminently. This made a contract period of six months necessary ([117]).

(iii) Apparent bias

To determine whether there was apparent bias, the High Court needed to apply the common law test formulated by Lord Hope in Porter v Magill [2002] 2 AC 357:  whether the circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased ([137]).

The Claimant argued there was a real possibility of bias, noting the personal connections between the decision-makers and the directors of PFL. The Defendant argued that the decision to award the contract to PFL was based on its expertise, experience, and availability to undertake the services and that personal connection was not a relevant factor in the decision.

Mrs. Justice O’Farrell found that the fact that the Defendant and Mr. Cummings knew individuals at PFL was insufficient to establish apparent bias. It did not preclude a lawful judgement on the suitability of PFL ([146]). However, it was incumbent on those involved to ensure a clear record of the objective criteria used to select PFL ([147]). The Defendant argued that PFL was known to be capable and was already conducting the research ([157]). This argument was rejected because it was not part of the decision-making process and did not stand up to scrutiny ([158] – [163]). The High Court determined that the Defendant’s failure to consider any other search agency would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision-maker was biased ([168]). Accordingly, the claimant established its case that the circumstances in which the contract was awarded gave rise to apparent bias and was unlawful ([169]).

(d) Analysis

The “Public First” case was not about whether the Government had the right to respond in a way it deemed necessary in the context of a global pandemic. Although not relating to public procurement, R (on the application of Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1605 (“Dolan”) is instructive for the latitude the court may afford to decision-makers in the context of the COVID-19 pandemic. The Court of Appeal observed the “wide margin of judgement” to be afforded to the Government and to Parliament, who were best placed to balance public health with other matters ([97]). Peppered through Mrs. Justice O’Farrell’s judgement in “Public First” are acknowledgements that the Defendant could not foresee the extent or duration of the pandemic ([117]) and recognition of the importance of services that would contribute to changing public behaviour ([124]).

Nevertheless, the “Public First” case shows that this latitude is not absolute and that even in an emergency, such as a pandemic, decision-makers must comply with public law principles such as transparency and accountability. The decision relays Lord Hewart’s statement in R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256 (‘McCarthy’) – justice must not only be done, but “be seen to be done” (259). While the media focus has been on the personal connections between the Defendant and Dominic Cummings with PFL, the High Court considered personal connections alone insufficient to establish bias. In this case, the appearance of bias arose from the failure to consider other research agencies. Imogen Proud of Monckton Chambers has argued that what was implicit was the Court’s view that the Defendant would have had sufficient time to consider other agencies.

Notably, the “Public First” case was not the first time a challenge has been brought regarding COVID-19 contracts and governance during the pandemic. It came only months after the decision in R (Good Law Project) v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin) (‘GLP’), which held that the SoS had unlawfully failed to comply with his obligations when awarding goods and services contracts during the COVID-19 pandemic. Thus, the “Public First” case is not an isolated decision and could form part of a pattern of decision-making, where government ministers are held legally accountable for failing to uphold public law principles.

(e) Conclusion: What next?

To fully evaluate this case, it is essential to consider the aftermath. For the Government, it would seem that life goes on. A Downing Street spokesperson said the judgement made clear that there was no suggestion of actual bias in the award, forgetting that the case turned on the appearance of bias. However, with the upcoming public inquiry and the inevitability of future challenges concerning the Government’s conduct during the pandemic, the Government cannot sweep this under the carpet. The “Public First” case illustrates an important proposition summarised by the director of Good Law Project Jolyon Maugham QC: “When you spend public money you have a duty – owed to those whose money it is, to you and me – to spend it properly in service of the public interest. And to be ready to show the public that you have; to justify your decisions.”

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