The Government have for many years issued a booklet to the civil service called “The judge over your shoulder”. It is designed to alert civil servants to the issues in their roles which might lead to judicial review. The result of the recently decided Public First case is that this tome may need another chapter, as the application of the apparent bias doctrine to procurement is brought to the fore for the first time. It has not really surfaced there before. The case made the headlines on the basis that it was “chums of Dominic Cummings” who gained large contracts and it is another of the long line of long running battle with the courts where the Government has come second.

In short and somewhat ironically, Public First were testing messages to ensure people abided by rules

To be precise, Public First were paid a large sum for services and deliverables which included: “i)recruitment and delivery of focus groups and/or mini groups to an agreed specification, covering the general public and key sub-groups defined by demographic, life stage or other agreed criteria; ii)same-day top line reporting and next-day fuller reporting of focus group findings; and iii)on-site resource to support Number 10 Communications.” In short and somewhat ironically, Public First were testing messages to ensure people abided by rules. The central question for the courts was whether those who gave them the contracts abided by the rules primarily of public procurement? 

Public First is run by James Frayne and his wife Rachel Wolf. Rachel co-wrote the Conservative manifesto for the last election. Rachel, James and Dom worked together at a think tank for some years. Theirs is a mid-sized agency, specialising in opinion research on complex issues of public policy, as well as policy analysis and communications. They seemed admirably qualified for the job (no one suggested otherwise); their one downside which invited the litigation was that they knew the controversial Robespierre of Brexit.

Mr Cummings said in a witness statement for the case “Obviously I did not request Public First be brought in because they were my friends. I would never do such a thing … The fact that I knew the key Public First people well was a bonus, not a problem, as in such a high-pressure environment trust is very important, as well as technical competence.”

There might have been an issue about whether this crossed the line between political and government research and communications, but the line is a fine one and this was not part of the litigation. The Government in defending the claim said that other potential suppliers were not used because they could not provide the requisite services and it would have been disproportionate to divert resources from other critical tasks to conduct a full procurement exercise for them.

There was some internal dissension about Public First at Number 10. Disclosure in the court process turned up some delicious emails recording that for example Ms Hunt, Head of Insight and Evaluation for the Prime Minister’s Office and Cabinet Office communication team, was very concerned by the situation. Her email of 17 March 2020 shouted: “… this agency is the one who are Dom Cummings / Lee Cain’s mates, and hence getting all our work with no contract BUT are also spending much money on doing all our ridiculous groups, so keen that they’re paid and don’t start whining about us when it’s not our fault. I know it’s not you!! …”

Some insiders thought the work should be put to tender. The Government however successfully argued in court that there was an urgent requirement for the immediate and continuing provision of the services as a consequence of the serious, rapidly developing and unpredictable public health situation. There was an exception to this effect in the public procurement rules. 

She decided that the Government “had the unenviable task of making immediate decisions on policy and strategy in the face of the impending public health crisis”. There was held to be no breach of the Public Contracts Regulations 2015.

There were in fact no criteria to differentiate Public First from other such agencies mainly because Mr Cummings did not consider the possibility of using an alternative agency

The only basis on which the Good Law Project (fronted by that doughty champion Jolyon Maughan QC) succeeded was apparent bias. They claimed that the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Government, in choosing to award the Contract to Public First was biased in its favour, in the light of: (i) the longstanding and close personal and professional connections between (a) the directors and owners and (b) Michael Gove, Dominic Cummings and the Conservative Party; (ii) the decision to award without any form of competition; (iii) the ability of other providers, such as YouGov PLC and the Kantar Group, to provide the Contract services; and (iv) the extremely high price of the Contract (£840,000) for only 6 months’ focus group and communications services.

The judge decided that it was necessary to ensure that there was a clear record of the objective criteria used to select Public First over other research agencies so that they could allay any suspicion of favourable treatment based on personal or professional friendships but this did not take place. There were in fact no criteria to differentiate Public First from other such agencies mainly because Mr Cummings did not consider the possibility of using an alternative agency. 

His professional and personal connections with Public First did not preclude Cummings from making an impartial assessment in this regard. However, the Judge concluded that the 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. In particular, “No one identified the objective criteria which Public First was determined to be the appropriate agency for the work. The fact that PF was considered competent, reliable and honest was a necessary but not sufficient reason”.

The common law test of apparent bias is that “the court must first ascertain all the circumstances which have a bearing on the suggestion that the decision  maker was biased. It must then ask whether these circumstances 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”.

So the key question is whether this is just another tick box ticking exercise or something of real substance. The provision of a contract to mates of Dominic Cummings at present does not have a good look. Perhaps the booklet should be renamed “the judge inside and, on your shoulder”. It has been reported that the Good Law Project is next going to challenge on grounds of apparent bias the appointment to the House of Lords of Peter Cruddas who apparently gave a large sum to the Conservative Party which arrived soon after the appointment was announced and had been rejected by the House of Lords Appointment Committee. That looks a long shot but the Government lawyers must be bracing itself for litigation over public appointments more generally where there is evidence of favouritism for mates of Boris. The PPE contracts litigation and the Towns Fund litigation will also be fascinating. 

Watch this space.