The UK government acted lawfully in awarding a £560,000 contract to a research firm with links to Dominic Cummings, former chief adviser to Prime Minister Boris Johnson, the Court of Appeal ruled on Tuesday.
The government won an appeal in a lawsuit brought against it by the Good Law Project, a campaign group, in a rare piece of good news for Johnson’s embattled administration, which is facing fierce criticism after revelations about alcohol-fuelled gatherings in Downing Street during the first national lockdown in 2020.
The High Court had ruled in June that the Cabinet Office, currently headed by minister Steve Barclay, unlawfully awarded a government contract to Public First, a policy and research company run by James Frayne and Rachel Wolf, in March 2020.
Public First has links to Cummings, who left his role advising the prime minister in November 2020 and is now a fierce critic of Johnson, and the consultancy has other connections to the Tory party. Wolf co-wrote the Conservative party’s 2019 general election manifesto.
Mrs Justice Finola O’Farrell ruled in June that the government’s failure to consider any other research agency to do the work “would lead a fair minded and informed observer to conclude there was a real possibility or a real danger that the decision maker was biased”.
She concluded that the Good Law Project had established its legal case that the decision to award the contract to Public First gave rise to apparent bias and was unlawful.
However, on Tuesday, three Court of Appeal judges overturned her High Court decision and ruled in favour of the government.
Ian Burnett, the Lord Chief Justice of England and Wales, giving the court’s ruling, said: “We are unable to accept that in these circumstances the impartial and informed observer 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.”
Burnett said that a fair minded observer would realise the use of a negotiated procedure “was strictly necessary because of the pandemic emergency”, and “would not have found the absence of any formal record of the decision-making process indicative of apparent bias”.
The Good Law Project, which has brought a number of legal claims against the government over procurement processes, had claimed there was bias, or apparent bias, in the award of the six-month contract for testing the opinions of focus groups towards government policy.
It alleged that the contract was directly awarded to Public First because “Dominic Cummings wanted Public First to have the contract”.
On Tuesday, Jo Maugham, director of the Good Law Project, said he would seek an appeal to the Supreme Court. “We haven’t lost a case in court since 2019. But you don’t win everything forever — especially when you are fighting the most difficult cases in the most difficult terrain,” he said.
The government has always denied the claims of apparent bias in the award of the contract. In a witness statement given to the High Court, Cummings denied the contract had been awarded because of his connections and said he had not met Frayne since 2016.
Frayne, a founding partner of Public First, said its research team worked “unbelievably hard” during the height of the pandemic “helping refine messages that prevented many casualties”.
“Today’s judgment rightly pays tribute to the team’s efforts,” he said.
The Cabinet Office welcomed the ruling and pointed to the court’s “firm rejection of the allegation of apparent bias”.