A campaign group says a ruling by a High Court judge vindicates its characterisation of Government pandemic procurement as “institutionalised cronyism”.
Mrs Justice O’Farrell on Wednesday upheld a challenge by the Good Law Project and ruled that a decision to award a contract to a company whose bosses were friends of adviser Dominic Cummings gave rise to “apparent bias” and was unlawful.
The Good Law Project, which had taken legal action against Cabinet Office minister Michael Gove, said the Government should learn lessons and “stop wasting” public money.
Lawyers representing the Good Law Project had complained about a Cabinet Office decision to pay more than £500,000 of taxpayers’ money to market research firm Public First, following the start of the coronavirus crisis in March 2020, and questioned the involvement of Mr Cummings.
They said Prime Minister Boris Johnson’s then-chief adviser wanted focus group and communications support services work to be given to a company whose bosses were his friends.
Mr Gove, and Mr Cummings – who left Downing Street late in 2020 – disputed the claim, but Mrs Justice O’Farrell ruled in favour of the Good Law Project and said there had been a “failure to consider any other research agency”.
The judge, based in London, considered rival arguments at a virtual High Court hearing in February and delivered a ruling on Wednesday.
She said a fair-minded and informed observer would have appreciated there was an urgent need for research through focus groups on effective communications in response to the Covid-19 crisis.
The judge also said a fair-minded and informed observer would have appreciated Mr Cummings was “uniquely placed”, given his experience and expertise, to form a rapid view on which organisation might best be able to deliver those “urgent requirements”.
She said Mr Cummings’ professional and personal connections with Public First did not preclude him from making an impartial assessment “in this regard”.
But she added: “However, the defendant’s failure to consider any other research agency, by reference to experience, expertise, availability or capacity, would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, that the decision-maker was biased.”
She said the Good Law Project was entitled to a declaration that the decision, taken on June 5 2020, to award the contract to Public First “gave rise to apparent bias and was unlawful”.
“Michael Gove had claimed that the work was such that only Public First could carry it out,” said a spokeswoman for the Good Law Project.
“The decision vindicates Good Law Project’s long-running characterisation of pandemic procurement as ‘institutionalised cronyism’.”
In February, a judge ruled that Health Secretary Matt Hancock acted unlawfully when his department did not reveal details of contracts signed during the Covid pandemic, after a Good Law Project challenge.
The Good Law Project spokeswoman added: “This is the second decision in Good Law Project’s slate of crowdfunded procurement judicial reviews – and Good Law Project has succeeded in both.
“Two Cabinet ministers – Michael Gove and Matt Hancock – have now been found to have broken the law.”
“The judge recognised the very complex circumstances at the height of the pandemic and that failure to provide effective communications would have put public health at risk.
“The judgment makes clear that there was no suggestion of actual bias and that the decision to award the contract was not due to any personal or professional connections.”
He said “procedural issues” raised in the judgment had already been addressed through the implementation of an independent review of procurement processes.
Mr Cummings, who did not give evidence at the hearing but outlined his position in a written witness statement, had said he “obviously” did not ask for Public First to be brought in because they were friends.
He said the country was facing an emergency because of the coronavirus crisis and “the award of the contract without delay” was “entirely justified”.
After Mrs Justice O’Farrell’s ruling, he tweeted: “… summary: ‘there is no suggestion of actual bias’ but instead of telling officials to focus on the worst crisis since 45, a disease x2 in 2-3 days, I shd have told officials to focus on creating a Potemkin paper trail to negate campaigners claiming ‘appearance’ of bias.”
The Good Law Project challenged the Cabinet Office decision on three grounds, saying there was no basis for making a direct award; the award of the contract for a period of six months was disproportionate; and the decision to award the contract to Public First gave rise to “apparent bias”.
Mrs Justice O’Farrell upheld the third ground but not the first two.