No Bias in Government Covid Contract Award
The Lord Chief Justice gave the judgment of the Court of Appeal allowing an appeal by the Minister for the Cabinet Office against the decision of Mrs Justice O’Farrell who allowed a claim for judicial review of his decision to award a contract to Public First Limited without public competition: The Good Law Project, R (On the Application of) v Minister for the Cabinet Office [2022] EWCA Civ 21: Lord Burnett CJ, Coulson, Carr LJJ
The Minister’s decision was made in late February/early March 2020 as the Covid-19 pandemic took its grip on the nation.
There was no suggestion that Public First had provided its services with anything other than expert skill and care.
No challenge or complaint was ever raised to the award of the contract by any potential competitor of Public First.
The judge held that Good Law had sufficient standing and the Minister had not appealed that part of the judge’s decision.
The question of standing for complete strangers to the procurement process with no commercial interest both under the Regulations and on public law grounds was a question ripe for review when it next arose.
The judge held that the decision to award the contract to Public First gave rise to apparent bias contrary to common public law principles.
The finding was based on a combination of the personal association between Dominic Cummings, the then Chief Adviser to the Prime Minister, and the directors and owners of Public First, and the Minister’s failure to consider any other research agency or to keep a record evidencing that objective criteria were used to select Public First over other research agencies.
This was an unprecedented outcome: a party with no potential interest in a contract had not hitherto obtained a declaration of unlawfulness on the basis of apparent bias in respect of a decision by a public body to grant a private law contract.
The common law rules against bias dated back to the 1860s with the decision of Blackburn J in R v Rand[1] which established judges could not determine an issue in which they had a pecuniary interest.
Procedural fairness required that the decision-maker should not be biased or prejudiced in a way that precluded fair and genuine consideration being given to the evidence and arguments being advanced by the parties. It aimed at preventing a hearing or decision-making process from being a sham or a ritual because the decision-maker was not open to persuasion.
Actual bias had been described as rare and difficult to prove[2]. The courts were therefore more commonly asked to look at the circumstances of a case to see if there was an appearance of bias, an allegation which should only be made on a proper basis.
The rules against bias were now well-established: the court must first ascertain all the circumstances which had a bearing on the suggestions that the decision-maker was possibly biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the decision maker was biased.[3]
The fair-minded and informed observer was someone who reserved judgment until both sides of any argument were apparent, was not unduly sensitive or suspicious, and was not to be confused with the person raising the complaint.
The observer considered the evidence carefully, having particular regard to the specific factual circumstances, taking a balanced approach and appreciating that context formed an important part of the material to be considered.[4]
These principles had been extended to apply to wider extra-judicial decision making, but always and only in an adjudicative context, such as local authority and planning committee decision making[5], or a process to determine which of a number of hospitals should conduct specific treatments[6].
There was a tension between the judge’s finding on the one hand that the Minister was entitled to rely on Regulation 32 in awarding the contract, and on the other hand the conclusion that the Minister was nevertheless required (i) to consider other research agencies by reference to experience, expertise, availability and capacity and (ii) to keep a clear record of the objective criteria used to select Public First over other research agencies as part of the process in order to avoid an appearance of bias.
Regulation 32 allowed the Minister to proceed without competition. That conclusion effectively disposed of the allegation in the Amended Grounds: there was no obligation on the Minister to carry out any form of competition.
That left only the first allegation, namely the relationship between the directors and owners of Public First and Mr Cummings and the Conservative Party. The judge found in terms that the relationship did not create any apparent bias.
Having regard to the specialised nature of the public policy and communications research industry, it was unsurprising that those involved at Public First might have developed professional and/or personal friendships over the years working within government departments.
The effect of the judge’s conclusions was to find breach on the part of the Minister of an unspecified obligation to carry out a process that involved a formally documented consideration of other research agencies (by reference to experience, expertise, availability and capacity) which gave rise to apparent bias.
That conclusion was at odds with the finding that the Minister was at the same time justified in using a negotiated procedure without prior publication, something which did not require consideration of any other agencies.
The question of identifying and evaluating the capacity and suitability of other tenderers in those circumstances did not arise at all.
The Court of Appeal was unable to accept that in those circumstances the impartial and informed observed would, in effect, require the creation of a common law “procurement regime-light” in the absence of which he would think there was a real possibility of bias. That was sufficient to determine the appeal.
With respect to the judge, there were also real problems in the approach to the evidence. There was no basis for rejecting the evidence of either witness who gave evidence on behalf of the Minister who was under a duty of candour. That evidence was not contradicted by objective evidence elsewhere.
The question of apparent bias ought to have been assessed on the basis that the reasons behind the decision to award the contract at the time that it was taken included those set out in the evidence for the Minister.
The fair-minded and informed observer would have been aware of those reasons and the material context.
Against that background, the fair-minded and reasonably informed observer would not have concluded that a failure to carry out a comparative exercise of the type identified by the Judge created a real possibility that the decision-maker was biased.
Equally, the fair-minded and informed observer, realising, amongst other things, that the use of a negotiated procedure without prior publication (with Public First) was strictly necessary because of the pandemic emergency, would not have found the absence of any formal record of the decision-making process indicative of apparent bias.
You can listen to this case summary on the Baines Law Podcast The Good Law Project v Minister for the Cabinet Office [2022] EWCA Civ 21 which can be accessed on the Podcast Page of this Website at Podcast – Barry Baines
[1] [1866] 1 LQR 1 B 230
[2] Broadview Energy Developments Ltd v Secretary of State for Local Communities and Local Government [2015] EWHC 1743 (Admin at [47]
[3] Porter v Magill [2001] UKHL 67; [2002] AC 357 at [102] to [103]
[4] Helow v. Secretary of State for the Home Department [2008] UKHL 62; [2009] 2 All ER 1031; [2008] 1 WLR 2416 at [1] to [3]; Almazeedi v. Penner and others (Cayman Island) [2018] UKPC 3; [2018] 2 WLUK 600 at [20]; Gillies v. Secretary of State for Work and Pensions [2006] UKHL 2; [2006] 1 All ER 731; [2006] 1 WLR 781 at [17].
[5] R (Lewis) v. Redcar & Cleveland Borough Council [2008] EWCA Civ 746; [2009] 1 WLR 830
[6] R (Royal Brompton and Harefield NHS Foundation Trust) v Joint Committee of Primary Care Trusts [2012] EWCA Civ 472