Michael Gove acted unlawfully when the government awarded a contract without a tender last March to a polling company owned by long-term associates of his and Dominic Cummings, then Boris Johnson’s chief adviser, a judge has ruled.
Mrs Justice O’Farrell, who gave the ruling on the Cabinet Office contract with the company Public First, gesê: “The decision of 5 Junie 2020 to award the contract to Public First gave rise to apparent bias and was unlawful.”
The ruling is the first in a series of judicial review legal challenges brought by the Good Law Project (GLP) against government Covid-19 contracts awarded with no competitive tenders under emergency regulations.
The government has defended the cases determinedly, initially trying but failing to have them thrown out, dan refusing to limit its costs. That has put the GLP, a not-for-profit organisation that raises money through crowdfunding to support its stated mission to “use the law to protect the interests of the public”, at severe financial risk if it loses and has to pay the government’s costs.
In Februarie, the Government Legal Department notified the GLP that its costs for defending the challenge to the Public First award could reach £600,000, more than the value of the contract.
Public First is run by husband and wife policy specialists James Frayne and Rachel Wolf, both of whom previously worked with Cummings and Gove, the Cabinet Office minister. It was initially given a Cabinet Office contract last January, having been recommended to civil servants by Cummings and three other senior Johnson staff.
It conducted focus groups with mostly new Conservative party voters in northern towns, about what the government’s “levelling up” promise meant to them. When the pandemic then hit, Cummings urged civil servants to hire Public First to hold focus groups on the government’s Covid-19 health messaging.
The first contract, for £90,000, was below the threshold at which an open competitive tender is legally required. Internal emails disclosed for the legal action revealed that a Cabinet Office civil servant had described that work as “Tory party research agency tests Tory party narrative on public money”. The civil servant said in a witness statement that she had not meant that seriously.
The second Covid-19 contract was for a maximum of £840,000 but was awarded under regulations that waived the requirements for a tender due to the coronavirus emergency. Public First was ultimately paid £564,393 for that work. The contract also included the secondment of a Public First partner, Gabriel Milland, to work in Downing Street’s Covid-19 communications operation.
When the Guardian and OpenDemocracy first revealed the contract last July, the Cabinet Office said it was “nonsense” to suggest that Frayne and Wolf’s long association with Cummings was a factor in the decision. Egter, when the case reached a hearing in February, Cummings confirmed in a witness statement that Frayne and Wolf were his long-term friends, and that he had been instrumental in Public First being given the Covid-19 work.
Cummings said he had not requested they be brought in because they were his friends, but because he believed due to his knowledge of the company that it was the only one capable of doing the work well at such short notice. “Very few companies in this field are competent,” Cummings said, “almost none are very competent, honest and reliable”.
The GLP argued in front of O’Farrell that the Cabinet Office acted unlawfully, with “apparent bias”, in awarding the contract. The government denied that, saying the “past professional connection” between Cummings and the Public First owners “simply enabled a better judgment to be reached about whether Public First were indeed the best/only suitable body to perform the services as needed”.
Frayne has also said that Public First had particular expertise to carry out the work. Egter, Jan Gooding, president of the Market Research Society, said in a witness statement she was “extremely concerned” at Cummings’ comments about companies in the field, adding that there were many award-winning companies that were well-qualified to fulfil this contract.