17 June 2021

An Illegal Act?

The appointment of Public First.

By John Watson

The adjective “illegal” is an exciting one in a political context.  It has a smell of blood in the water, of corruption in high places.  It gets the journalistic juices running.  But sometimes the real issues get lost in the flurry.  For that reason the judgement of High Court Judge, Mrs Justice O’Farrell, that the appointment by Public First Limited to run focus groups to help frame the government’s response to Coronavirus is worth a careful look.

The starting point, of course, is to identify what “illegal” means.  The Good Law Project which brought the action challenging the appointment put its case in two ways.  The first was to say that the Government should have gone through a full tendering process and that the conditions of extreme urgency, time pressures et cetera which had to be satisfied before it could dispense with that under regulation 32(2)(c) of Public Contracts Regulations 2015 were not satisfied.  Here the Government was vindicated, the Judge deciding that the circumstances of the pandemic justified dispensing with a competitive process and that the award of a six month contract was not a disproportionate use of its powers.  Perhaps that is not surprising.

The second allegation was one of “apparent bias” and here the connection between the law and common sense is rather less obvious.  The first thing to spot is that no one was suggesting there was actual bias at all but that is not the legal test.  What the challenger had to show was that: –

“the fair minded and informed observer would conclude that there was a real possibility of bias, having regard to the personal connections between the decision-makers and the directors of Public First”

So if, making an appointment in circumstances of extreme urgency, the Government appointed the most appropriate contractor simply because it was the most appropriate, the appointment would be illegal unless it had created a sufficient paper trail to satisfy an informed observer.  No doubt that is the law but the potential for due process to impede necessary action is obvious.  Perhaps breaking the law in this regard is not as serious as one might think.

Then let us have a look at what the potential source of “bias” actually was.  The founders and directors of Public First were friends of Dominic Cummings and Michael Gove.  They had worked together before and Mr Cummings who regarded them as friends, also said in evidence:

“I have talked to them extensively about focus groups and public opinion over many years.”

When the need for more focus groups arrived, he thought they were the right people for the job, and, knowing that they had the confidence of the Prime Minister, suggested (and one might as well say ordered) that they be appointed.

The judgement does not suggest that the fact that Mr Cummings knew Public First so well should have been a block to their appointment.  There were not many agencies in the marketplace for this sort of work and it was likely he would know most of them.  The reason why the Government was taken to have acted illegally was that it failed to discharge the burden necessary to avoid “apparent bias”; in the words of the Judge: –

“However, in the absence of a tender competition, it was incumbent on the Defendant to ensure that it could demonstrate that the procurement was nonetheless fair and impartial, namely, by producing evidence that objective criteria were used to select Public First over other research agencies.”

The trouble here seems to have been that in the area of focus groups, on which he was expert, Mr Cummings knew his mind.  Public First was the firm he trusted and he believed was the right firm for the job, so it was that firm which he chose without investigating the alternatives, something which no doubt he would have regarded as a waste of time.  The fact that there was no actual bias bears witness to the fact that it would have been.

I do not know what remedy the judge will decide is appropriate.  If the hiring was illegal, presumably the contract with Public First must fall, but then the agency has actually carried out the work.  Perhaps they will be paid on some form of quantum meruit basis.  But there is a general point here which goes beyond the facts of the particular case.  Can it be right that arrangements are struck down as illegal when it turns out on hearing evidence from those who made the decision that there was no bias, just because the Government did not go through a number of cosmetic steps which would have demonstrated the contrary to a neutral observer?  If so, there is a nasty trap for those who move too quickly in an emergency.

No doubt this case will go to the Court of Appeal and either or both of the conclusions of the High Court may be overturned.  It is worth bearing in mind, however, when the headlines scream “government acted illegally” or “government justified in its action” that all we are talking about is whether it was right to dispense with some rather pointless box ticking at a time of national emergency.

 

 

Cover page image: Lonpicman (Creative Commons)