Effectively holding ‘bad chaps’ to account? Considering the Good Law Project’s procurement judicial review claims
Judicial review (JR) proceedings allow the courts to pass judgement on the lawfulness of government decisions. JR claims can be brought by any person or entity with a sufficient interest in the relevant decision. JR claims have become increasingly common and increasingly high-profile, in particular since the Supreme Court cases brought by Gina Miller relating to Brexit and the prorogation of Parliament.
On 9th June 2021, in JR proceedings brought by the Good Law Project (GLP) against the Cabinet Office, the High Court ruled that a government contract awarded in June 2020 to Public First (a polling company) was unlawful. The High Court’s finding was on the grounds of ‘apparent bias’, arising from the close personal connections between Public First and Dominic Cummings. The government is in the process of appealing the decision.
The Public First ruling was a high point in a headline-making year for GLP, which (as noted by Mr Justice Fraser in the High Court) has ‘come to particular and increasing prominence since the pandemic, as it has challenged the behaviour … of the Government’. GLP apparently has cash to burn (its founder Jolyon Maugham QC reckons that GLP’s income for 2021–22 could be close to £10m) and it is determined to use the law to hold the government accountable for actions that it believes reveal flaws in the UK’s ‘good chaps’ theory of government.
GLP is increasingly focused on bringing what it describes as a ‘long slate’ of procurement JR claims like Public First. However, while GLP has had significant success in 2021, the outlook for GLP’s procurement JR claims in 2022 and beyond may not be so rosy, and it may be that GLP will be forced to focus on its other projects. Despite that, the remarkable success of its procurement JRs in 2021 should be applauded.
GLP — background and current work
GLP was founded by Maugham in 2017. Much of its early work related to Brexit, alongside work on other issues close to Maugham’s heart, like a campaign to force Uber to pay VAT on its earnings in the UK (before starting GLP, Maugham had a successful practice as a tax barrister).
Following its recent boom, GLP now focusses on three areas:
1. No-one left behind (work with ‘marginalized and underrepresented voices and communities’).
2. Protecting the environment (environmental litigation ‘to strengthen and uphold environmental laws’).
3. Upholding democracy (work to ‘defend, define and change the law to uphold democracy’).
Across all three areas of focus, GLP does significant amounts of general campaigning. For example, it has recently been publicly pressuring the Metropolitan Police to investigate the now infamous 2020 Downing Street parties. However, JR proceedings are GLP’s biggest weapon: a positive judgment like Public First offers validation of GLP’s methods from the court, significant publicity, and (in most cases) an award of legal costs in GLP’s favour.
GLP’s procurement JR claims
GLP’s biggest current area of focus for JR claims is government procurement during the pandemic. This offered an obvious target for GLP’s ‘Upholding democracy’ workstream, for two reasons.
Firstly, the pandemic caused a sudden and extremely significant uplift in procurement spending. For example, between January and 31 July 2020, the Department for Health and Social Care (DHSC) awarded contracts worth £16.2 billion (almost 15x more than in the whole of the previous year).
Secondly, significant concerns have been raised about due process. For example, Transparency International UK estimates that 20% of UK government procurement contracts between February and November 2020 ‘raised one or more red flags for possible corruption’.
GLP has sought to challenge the government procurement process by bringing JR claims which largely focus on alleged breaches of the Public Contracts Regulations 2015 (PCR 2015), the regulations that govern the award of contracts by the government.
In addition to Public First, GLP also had a significant win in its other procurement JR claim to receive a substantive judgment in 2021 (DHSC Contracts). In February 2021, the High Court ruled that, when issuing billions of pounds worth of pandemic-related contracts, DHSC had breached its notice requirements under PCR 2015 and a related transparency policy. The Court ordered a declaration in GLP’s favour and awarded GLP its legal costs.
Otherwise, in GLP’s active procurement JR claims where only a procedural judgment was handed down in 2021:
· Pharma Direct has not been allowed to continue due to procedural failures by GLP when serving the claim form (GLP is appealing the decision).
· A final judgment is expected in Pestfix in early 2022.
· The substantive hearing in Abingdon has been delayed until May 2022.
· Hanbury has been stayed pending the result of the Public First appeal.
Getting two positive substantive judgments out of two in one year as a judicial review claimant is a significant achievement. According to an academic study, of the 3383 JR applications in the Administrative Court in 2019, only 87 resulted in a judgment in favour of the claimant. GLP will therefore rightly be extremely pleased with the two wins in DHSC Contracts and Public First.
However, it has not always been plain sailing, and there may be storm clouds gathering on the horizon.
GLP received some significant, and embarrassing, setbacks in its procurement JR claims in 2021. In addition to the costly ‘service blunder’ in Pharma Direct, Maugham was recently forced to issue an apology after GLP provided a witness statement from Abingdon to the Daily Mail in breach of the Civil Procedure Rules.
Moreover, due to its general procurement campaigning, GLP has been threatened with defamation proceedings by P14 Medical Limited (P14), a company awarded £276m worth of PPE contracts.
Procedural setbacks and threatened lawsuits clearly have the potential to damage GLP’s credibility. However, they can also fairly be seen as occupational hazards for GLP, and GLP has generally responded bullishly. However, the upcoming judgment in the appeal of the Public First judgment could be significantly more damaging.
Following the hearing of the Public First appeal in the Court of Appeal on 25 November 2021, Maugham acknowledged on Twitter that the Court of Appeal had appeared sceptical of GLP’s arguments. If a negative appeal judgment follows, it could be extremely damaging to GLP’s procurement JR proceedings.
Firstly, given that Hanbury was stayed on the basis of its similarity to Public First, the starting assumption would be that the High Court in Hanbury would follow any decision of the Court of Appeal in Public First.
More generally, if, for example, the Court of Appeal’s judgment cast doubt on GLP’s standing to bring judicial review claims in respect of procurement decisions under PCR 2015 (a point which Lord Chief Justice Burnett raised himself early in the Public First Court of Appeal hearing), it would seriously call into question GLP’s ability to proceed with any of its procurement JR claims, which all focus to some extent on PCR 2015. Such a result would be a hammer blow, given the time and resources GLP will have invested in its procurement JR claims.
Conclusion
GLP is riding high after a successful 2021 during which, particularly through its procurement JR successes, it has proved that it will take action if it considers the government is failing to act like ‘good chaps’ (in stark contrast to the general response to such failures). However, there is a risk that its procurement JR progress will be rapidly reversed in 2022 if the Public First appeal judgment is not favourable.
In addition, with the Conservative government apparently determined to reform both procurement and judicial review procedure, GLP’s ability to bring meaningful procurement JR claims may well be constrained in the medium to long term in any event.
As such, while GLP would no doubt seek to appeal an unfavourable Court of Appeal judgment to the Supreme Court if allowed, GLP may also be forced to consider shifting its focus to other areas in 2022 and beyond, such as other democracy-related JR claims, its recently filed JR claim against the NHS in respect of trans rights, or its environmental work.
Nevertheless, GLP and Maugham should be applauded for the success they have achieved in their procurement JR claims, against the odds, against a government apparently determined to fight the cases to the end, and in the face of hostile coverage from the right-wing press. Upholding democracy by holding the government to account over the way it has spent vast quantities of public funds is both admirable and (particularly in the current climate) extremely important.
Mark Thornton is a research assistant to a public law QC. Until November 2021, he was an Associate in the Disputes & Investigations department of a Magic Circle law firm. He is particularly interested in judicial review and the use of strategic litigation to effect change.
