The Good Law Project v Minister for the Cabinet Office
| Jurisdiction | England & Wales |
| Judge | Mrs Justice O'Farrell |
| Judgment Date | 09 June 2021 |
| Neutral Citation | [2021] EWHC 1569 (TCC) |
| Date | 09 June 2021 |
| Docket Number | Case No: CO/2437/2020 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 1569 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
Rolls Building
London, EC4A 1NL
Mrs Justice O'Farrell DBE
Case No: CO/2437/2020
Case No: HT-2020-000290
The Queen on the application of
and
Jason Coppel QC and Patrick Halliday (instructed by Rook Irwin Sweeney LLP) for the Claimant
Sir James Eadie QC, Michael Bowsher QC, Ewan West and Anneliese Blackwood (instructed by Government Legal Department) for the Defendant
Hearing date: 15 February 2021
Further written submissions: 25 February 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mrs Justice O'Farrell
This is the hearing of the Claimant's claim for judicial review in respect of the Defendant's award of a contract for the provision of focus group and communications support services (“the Contract”) without public notice or competition, relying on Regulation 32(2)(c) of the Public Contracts Regulations 2015 (“the PCR 2015”).
The award of the Contract to the Interested Party (“Public First”) was made by the Defendant's letter dated 5 June 2020 and an email from Public First dated 8 June 2020, with an effective date of 3 March 2020 and an expiry date of 2 September 2020.
The services and deliverables under the Contract 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.
The grounds of challenge relied on by the Claimant are as follows:
i) Ground 1: there was no basis for making a direct award under Regulation 32(2)(c). The Claimant's case is that the direct award of the Contract to Public First was not strictly necessary. The Government already had several existing contracts with other suppliers which it could have used to commission the work; alternatively the duration of the Contract and services commissioned under the Contract should have been restricted to a few weeks, enough time to meet the Defendant's needs, while it conducted a competitive procurement of the services.
ii) Ground 2: the award of the Contract for a period of six months was disproportionate. The Claimant's case is that even if Regulation 32 were applicable, the Contract should have been restricted to the Defendant's immediate, short term needs, pending a competitive process to procure a longer term supply of the services.
iii) Ground 3: the decision to award the Contract to Public First gave rise to apparent bias contrary to principles of public law. The Claimant's case is 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.
The Defendant disputes each ground of challenge:
i) In respect of Ground 1, the Defendant's case is that the conditions for making an award under Regulation 32(2)(c) of the PCR 2015 were satisfied. The immediate and continuing provision of the research services provided by Public First were necessary to address the serious public health risks posed by the COVID-19 pandemic. There was no time to run an accelerated procurement under the open or restricted procedures, competitive procedures with negotiation, or to place a call off contract under any existing framework. Other potential suppliers were not used because they could not provide the requisite services.
ii) In respect of Ground 2, the Defendant's case is that the award of the Contract for a period of six months was not disproportionate. The scale of the national emergency was unprecedented in peacetime. The provision of the research services was essential to ensure effective communications of vital health messages to the public. The Defendant could not risk the Contract expiring before the peak of the crisis had passed, as to which there was no certainty. It would have been disproportionate to divert resources from other critical tasks to conduct a procurement exercise for these services.
iii) In respect of Ground 3, the Defendant's case is that, in all the circumstances of the case, a fair-minded and informed observer, who had knowledge of the facts, would not conclude that there was a real possibility that the decision maker was biased. The decision to award the Contract to Public First was based on its expertise, experience and availability to undertake the required specialist services that had to be delivered at speed. Personal connections were not relevant factors in the decision, as opposed to professional assessment.
Further, the Defendant disputes that the Claimant has sufficient standing to bring the challenge by way of judicial review.
COVID-19 pandemic first wave
In early 2020 the first wave of the COVID-19 virus surged through Europe. On 11 March 2020 the Director General of the World Health Organisation announced that COVID-19 had been classified as a pandemic.
On 13 March 2020 there was widespread cancellation of sporting events, including Premier League football and the London Marathon.
On 16 March 2020 the Prime Minister began daily press briefings, urging everyone in the UK to stop non-essential contact and travel to enable the NHS to cope with the pandemic.
On 17 March 2020, the European Union closed all its external borders in an attempt to contain the spread of COVID-19.
On 18 March 2020 the Government announced that most schools across England would shut from Friday 20 March 2020. The Welsh and Scottish governments also announced that they would close schools.
On 20 March 2020 the Government ordered all pubs, restaurants, gyms and other social venues across the country to close. The furlough scheme was announced.
On 23 March 2020 the Prime Minister, in a televised address to the nation, imposed the first lockdown, asking the British people to: “Stay at home, protect the NHS and save lives.”
On 25 March 2020 the Coronavirus Act 2020 was passed, making emergency provision in connection with coronavirus and conferring wide powers on the Government to impose restrictions on the freedom of movement of individuals for public health protection.
On 9 April 2020 the UK recorded its highest COVID-19 daily death toll in the first wave of 1,073 deaths.
On 10 May 2020 the Prime Minister announced limited plans for the easing of the first lockdown.
Through June and July 2020 restrictions were relaxed and replaced with social distancing rules pursuant to revised regulations.
Appointment of Public First
Prior to 2020, the Prime Minister's Office and the Cabinet Office obtained information as to public attitudes towards government policy and communication through third party research services. The services included quantitative research, comprising large-scale surveys providing numerical data, and qualitative research, comprising smaller focus groups providing explanations for the opinions and attitudes held by members of the group. Such research services were obtained using a framework operated by the Crown Commercial Service (“the CCS”) known as the Research Marketplace Dynamic Purchasing System (“the RM DPS”). The RM DPS allows public authorities to buy market research services by running competitions among a list of registered suppliers.
One of the registered suppliers on the RM DPS is Public First. James Frayne, a founder and director of Public First, describes it as a mid-sized agency, specialising in opinion research on complex issues of public policy, as well as policy analysis and communications.
In early February 2020, Public First was engaged by the Cabinet Office for a discrete task of providing focus group services to test public opinion and policies in preparation for the Prime Minister's speech planned for later that month, ahead of the budget (“the Narrative Appointment”). These services did not include research connected with COVID-19. Neither Dominic Cummings, then Chief Adviser to the Prime Minister, nor the Rt Hon Michael Gove, Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster, had any involvement in the appointment of Public First to carry out this initial work and it is not the subject of any challenge.
By late February 2020 it became apparent that COVID-19 had created a national emergency. The Government decided that it needed an accurate understanding of public opinion to deliver guidance that would influence public behaviour to mitigate the spread of the virus, help prevent the NHS from being overburdened and save lives. The information required included the extent of public knowledge and understanding about COVID-19 and related safety information, existing public behaviour, and the public's response to, and understanding of, the Government's briefings and messaging.
A COVID-19 communications hub was established by the Defendant from which to deliver public information. Alex Aiken, Executive Director for Government Communication, convened meetings twice a day, covering the main areas of operation, and took part in the Prime Minister's briefing meetings. Research on...
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