Cabinet Office wins court appeal over contract awarded to Cummings-linked firm

The Good Law Project, which brought the case, plans to appeal to the Supreme Court
Dominic Cummings said he made the recommendation based on the ability of Public First

By Tevye Markson

19 Jan 2022

The Cabinet Office has won its bid to overturn a High Court ruling which found a contract awarded to a firm with links to Dominic Cummings was unlawful.

The Court of Appeal has overturned the ruling made last year, with the lord chief justice finding the original judgement was “unprecedented”.

Last June, the High Court ruled that the decision to award the contract to Public First was unlawful as it gave rise to “apparent bias”.

The government paid more than half a million pounds to the market research firm in June 2020, which tested public health slogans such as "stay at home, protect the NHS, save lives".

Public First is run by policy specialists James Frayne and Rachel Wolf, who both previously worked with Boris Johnson’s former chief adviser Cummings when he worked for Michael Gove.

Cummings, who was a special adviser at the Department for Education when he crossed
paths with the founders, recommended their company to the Cabinet Office in 2020

The Good Law Project, the campaigning organisation that brought the case, plans to appeal to the supreme court.

This case is just one of a series of judicial review legal challenges from GLP challenging government Covid-19 contracts which were awarded with no competitive tender under emergency regulations.

In last year's High Court ruling, Mrs Justice O’Farrell found that the “apparent bias” was not due to Cumming's links to Public First, but because of a failure to consider any other research agency or record the objective criteria used in the selection.

But, overturning the ruling this week,  lord chief justice Lord Burnett said: "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.”

GLP has asked the Supreme Court to hear an appeal, stating: “We don’t think the decision is right."

“We believe there is proper and widespread public interest in the extent to which the law restrains public servants from awarding valuable public contracts to their friends without adequate safeguards to protect against the risk of bias,” the organisation added.

A Cabinet Office spokesperson said: "We welcome the Court of Appeal's ruling that this contract was awarded entirely lawfully. This includes the court's firm rejection of the allegation of apparent bias, overturning the previous judgement.

"Throughout the pandemic our priority has always been to save lives and the work by Public First helped to improve vitally important health messages."

Cummings also welcomed the ruling, calling it a “total vindication for my decisions on moving super speedy on procurement to save lives”.

Frayne, a founding partner at Public First, said the judgement “rightly pays tribute” to his research team’s efforts and “they should be proud of their work”.

He said the team had worked “unbelievably hard for seven days a week – from early morning 'til late at night – during the height of the pandemic, helping refine messages that prevented many casualties”.

Days before the first coronavirus lockdown began in March 2020, the Cabinet Office issued guidance to public sector bodies that reminded them “exceptional circumstances" could be used as justification for directly awarding contracts, extending or modifying contracts during their terms, or accelerating a standard procurement procedure.

However, public contract regulations require departments to keep proper records of decisions and actions relating to individual contracts to “mitigate against the risk of a successful legal challenge”.

That there must also be genuine reasons for the extreme urgency – such as public-health risks or the loss of existing provision at short notice.

The Good Law Project argued in its case that the Cabinet Office acted with “apparent bias” in awarding the research contract to Public First, in light of Wolf and Frayne’s connections with Cummings and Cabinet Office minister Michael Gove, without a formal tender process.

However, the Cabinet Office asserted that past involvement with Public First underscored the quality of the firm’s work.

Cummings said his recommendation was made based on Public First’s ability and civil servants “could have disagreed and did disagree” with many of his suggestions at the time, adding: "On this occasion, I was an expert.”

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