The Good Law Project brought a judicial review case against the Government earlier this year over the award of the lucrative contract, which was issued without tender under emergency Cabinet Office provisions.
The campaigning organisation argued there was “apparent bias” in how the contract was given to Public First, due to the agency’s personal links with Boris Johnson's most senior former adviser, Dominic Cummings.
During a virtual hearing in February, Cummings (above) gave evidence in which he admitted he had been friends with Public First founding partners James Frayne and Rachel Wolf, as well as Gabriel Milland, a partner at the agency, over a period of “many years”.
The Public First contract was approved by Alex Aiken, executive director of government communications, and included paying Milland, his former deputy, to work at Number 10.
The contract was issued by the Cabinet Office, which is headed by Michael Gove.
During the case, lawyers acting on behalf of the Cabinet Office claimed the work carried out by Public First could only have been completed by the firm, but emails shown in evidence during the case revealed that Gove and No. 10 did not consider other agencies.
In an email exchange, a senior civil servant said: “I’ve had a couple of helpful chats with Hanbury and Public First who will lead programme (they’re agencies he/No. 10 want to lead and confirmed this in chat with spads yesterday)."
Emails between civil servants revealed in the course of our legal action revealed both Michael Gove and No 10 wanted contracts to be awarded to Public First: pic.twitter.com/u0tXHftbSD— Good Law Project (@GoodLawProject) June 9, 2021
In her ruling today Mrs Justice O’Farrell said: “The claimant is entitled to a declaration that the decision of 5 June 2020 to award the contract to Public First gave rise to apparent bias and was unlawful.”
The judgement added that the failure to consider any other agency offering similar services “would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, that the decision maker was biased”.
Regarding the assertion by Cabinet Office lawyers that only Public First could complete the work in question, the High Court held that “does not stand up to scrutiny” and that “the time constraints… did not exonerate [him] from conducting the procurement so as to demonstrate a fair and impartial process of selection”.
‘Deeply proud of our work’
In a statement, a spokesman for Public First said: “We're deeply proud of the work we did in the early stages of the pandemic, which helped save lives. The Judge rejected most of the Good Law Project's claims, not finding actual bias in the awarding of this work, nor any problems with the pace or scale of the award.
“Rather, the Judge found that weak internal processes gave rise to the appearance of bias. The judge made no criticism whatsoever of Public First anywhere in the judgement.”
Contracts without competition
The award of a lucrative contract to public affairs or political comms agencies with links to Cummings and other senior Conservatives without a competitive tender process is controversial, but not isolated.
A Cabinet Office memorandum last year on procurement, which highlighted these rules, noted that “COVID-19 is serious and its consequences pose a risk to life” and that “regulation 32(2)(c)… is designed to deal with this sort of situation.”
However, while allowing for awarding contracts in an emergency, the rules do contain tests for the contracting authority, in this case the Government, which must be met; including that the situation was unforeseeable, public health is at risk, or that it is impossible to run an accelerated procurement process to meet the need.
Public sector bodies must not only justify the use of these procedures, but they must also constantly reassess whether these conditions are being met.
The Cabinet Office also issued a statement in response to today’s ruling. A spokesperson said: “We welcome the court’s ruling that we were entitled to award the contract on grounds of extreme urgency in response to an unprecedented global pandemic. The Judge recognised the very complex circumstances at the height of the pandemic and that failure to provide effective communications would have put public health at risk.”
The spokesperson added: “The judgment makes clear that there was no suggestion of actual bias and that the decision to award the contract was not due to any personal or professional connections.”
The Good Law Project said the judicial review of the decision to award a similar contract to Hanbury will be heard next month.
Reacting to its victory in the High Court, the organisation said: "The decision vindicates Good Law Project’s long-running characterisation of pandemic procurement as 'institutionalised cronyism'."
Click here to subscribe to the new, FREE public affairs bulletin to receive dedicated public affairs news, features and comment straight to your inbox.
Make sure you register for the site to access more than one story per month.
To submit a news, comment, case study or analysis idea for the public affairs bulletin, email Ian.Griggs@haymarket.com