The Good Law Project Ltd v Minister for the Cabinet Office
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 09 July 2021 |
| Neutral Citation | [2021] EWHC 1937 (TCC) |
| Docket Number | Case No: HT-2020-000457 (CO/3564/2020) |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 1937 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Rolls Building
Fetter Lane
London, EC4A 1NL
THE HONOURABLE Mr Justice Fraser
Case No: HT-2020-000457 (CO/3564/2020)
The Queen on the application of
and
Robert Palmer QC and Brendan McGurk (instructed by Rook Irwin Sweeney LLP) for the Claimant
Philip Moser QC, Ewan West and Anneliese Blackwood (instructed by the Government Legal Department) for the Defendant
In these proceedings the Claimant, the Good Law Project, seeks judicial review in respect of an award of a contract by the Defendant, the Minister for the Cabinet Office, to the Interested Party (“Hanbury”) for the supply of services. These services were to assist the Government in terms of policy development, and emergency messaging to the public, as part of the response to the Covid-19 pandemic. The Claimant challenges that award as being contrary to the Public Contract Regulations 2015 (“PCR 2015”). Judicial review proceedings in relation to procurement matters, such as these proceedings, are often (if not invariably) dealt with in the Technology and Construction Court by a Judge who is also designated as a judge of the Administrative Court. That is what occurred in this case, the matter being transferred by Swift J in an order dated 29 October 2020.
This ruling has been made without a hearing, and on written submissions only, at the request of the parties. The substantive judicial review proceedings are currently intended to be heard on Monday 26 July 2021, with a time estimate of one day. On 5 July 2021 the legal advisers for the Minister issued an application for a stay of those proceedings for the reasons explained further below. The application also sought that the hearing on 26 July 2021 be vacated.
The Minister sought a decision on its application without a hearing, a somewhat optimistic course, given that the Government Legal Department must have anticipated (and in this case, actually knew) that the application would be opposed. Although I was prepared to hear the application orally, and invited the parties to make themselves available for a hearing of the application at short notice for this purpose, as matters transpired the Claimant indicated in its written submissions that it was prepared to have the matter dealt with on the basis of the parties' written submissions only, and without a hearing. That is therefore the course I have adopted. However, the parties ought not to interpret this as encouraging future applications generally — particularly urgent applications — to be suitable for disposal without a hearing.
By way of background, the Claimant is a not-for-profit campaign organisation that seeks to use the law to protect the interests of the public. It is a public interest body, and has come to particular prominence since the pandemic, as it has challenged the behaviour of the Government, and the Cabinet Office, in certain respects concerning the award of a number of contracts which were entered into very urgently in March/April 2020 as part of the pandemic response. It does not only challenge procurement decisions. It has been widely reported, and is therefore public knowledge, that this very week it has commenced proceedings in relation to the use by Ministers of private email accounts for the conduct of departmental business, something that has recently become highly topical.
Returning to the Claimant's challenges to procurement in a time of pandemic, there are already similar judicial proceedings brought by the Claimant in respect of a different contract. Those other proceedings concern the provision of focus group and communications support services by a company called Public First Ltd. Those other proceedings are not only already underway, they have been recently been decided at first instance. They were the subject of a judgment by O'Farrell J in The Good Law Project Ltd v Minister for the Cabinet Office and Public First Ltd [2021] EWHC 1569 (TCC), a reserved judgment and which was handed down on 9 June 2021 (“the Public First judgment”).
In the Public First proceedings, the Minister challenged whether the Claimant had sufficient standing to bring the challenge by way of judicial review. O'Farrell J found that it did. However, she also found that the Claimant's challenge succeeded on ground 3, that of apparent bias, due to the connection between the decision-makers at the centre of the Government and those behind Public First. The Claimant therefore succeeded in obtaining a declaration that the decision by the Minister to award the contract in that case gave rise to apparent bias and was unlawful. Two paragraphs of her judgment can be usefully reproduced in this respect:
“[146] The fact that individuals at Public First were known to and had worked with those involved in the decision making, including the Defendant and Mr Cummings, is insufficient to establish apparent bias. Having regard to the specialised nature of the public policy and communications research industry, it is unsurprising that those involved might have developed professional and/or personal friendships over the years working within government departments. I accept the submission of Sir James Eadie that those acquaintances did not preclude Mr Cummings from making a lawful judgment as to whether Public First was suitable for appointment to carry out the research work needed. That factor alone was not a ground for his recusal, particularly as his existing relationship with the directors of Public First was a matter of public record.
[147] However, the existence of personal connections between the Defendant, Mr Cummings and the directors of Public First was a relevant circumstance that might be...
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The Good Law Project Ltd v Minister for the Cabinet Office
...down a judgment on an application by the Minister for a stay of the substantive proceedings, for the reasons explained therein at [2021] EWHC (TCC) 1937. I granted the stay sought by the Minister. That judgment was handed down on 9 July 2021, and its effect included vacating the substantiv......