Dominic Cummings (House of Commons/PA)
(Picture: PA Archive)The Government has won a bid to overturn a High Court finding that its award of a contract to a company with ties to Dominic Cummings was unlawful.
The Good Law Project challenged the Cabinet Office over the £550,000 deal struck with communications firm Public First in June 2020, with a judge saying the decision gave rise to “apparent bias”.
Public First had carried out focus groups and research on slogans such as “Stay at home, protect the NHS, save lives”, and was said by Mrs Justice O’Farrell to have landed the deal after a failure to consider any other research agency.
On Tuesday morning, the Court of Appeal overturned the decision, finding fault in the judge’s decision-making process and approach to the evidence.
Reacting to the ruling on Twitter, Mr Cummings said the case showed the need for the Government to urgently put in place “clear procurement rules” for emergencies.
He called the ruling a “total vindication for my decisions on moving super speedy on procurement to save lives”, adding that the Court of Appeal had “seen sense & said I behaved lawfully”.
Calling for a “serious emergency procurement system”, Mr Cummings said he had to “move v fast in totally opaque legal miasma”.
The original court case had revealed how a civil servant referred to Public First’s work as a “tory party research agency tests tory party narrative on public money”. She later distanced herself from the comment, calling it “frivolous”.
The communication and focus group agency is run by long-standing friends of Mr Cummings and was handed the work without a formal bidding process.
Co-founder James Frayne worked with Mr Cummings on a Eurosceptic campaign two decades ago, and his wife Rachel Wolf is a former advisor to Michael Gove and one of the authors of the 2019 Conservative Party manifesto.
Another civil servant suggested in an email that Public First was “way, way too close to No10 to be objective”, but told the court she believed that “preparing and conducting a procurement in the middle of the pandemic seemed unrealistic.”
Mr Cummings also robustly defended his decision to bring in the firm, saying: “Obviously I did not request Public First be brought in because they were my friends. I would never do such a thing.”
He said: “Focus groups were a crucial part of the government’s communication strategy. The input was required immediately, there was no time to run a procurement over 6-8 weeks.
“In my opinion it would have been not only foolish but deeply unethical to delay procurement by even 24 hours given the situation we faced in February 2020.
“I am sure that the work done by Public First allowed better and faster decisions and this saved lives and minimised damage.
“I would do the same again without a moment’s hesitation and I believe all those involved who understand mass communication would share this judgement.”
Lord Chief Justice Lord Burnett, sitting with Lord Justice Coulson and Lady Justice Carr, said the original judgment against the government was an “unprecedented outcome”.
“A party with no potential interest in a contract has not hitherto obtained a declaration of unlawfulness on the basis of apparent bias in respect of a decision by a public body to grant a private law contract”, he 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.”
Mrs Justice O’Farrell had already ruled out unlawfulness over Mr Cummings’ connections to the founders of Public First.
Jolyon Maugham, the director of the Good Law Project, said it is intends to seek leave to permission to appeal today’s ruling in the Supreme Court.
“This is the first substantive judgment against us since 2019”, he said on Twitter.
“We think, with respect, it’s wrong and we are asking for permission to go to the Supreme Court.”
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 judgment.
"Throughout the pandemic our priority has always been to save lives and the work by Public First helped to improve vitally important health messages.”
Mr Frayne, in a statement, said: “Our team worked unbelievably hard for seven days a week – from early morning until late at night - during the height of the pandemic, helping to refine key messages that reduced the pressure on the NHS and prevented many casualties.
“Today’s judgment rightly pays tribute to the team’s efforts and reaffirms what we have always known: that they should be proud of their work.”
