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CO/2437/2020
HT-2020-000290
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
AND ADMINISTRATIVE COURT
BETWEEN
THE QUEEN
on the application of
THE GOOD LAW PROJECT
Claimant
-and- MINISTER FOR THE CABINET OFFICE
Defendant
DETAILED GROUNDS OF RESISTANCE
_________________________________________________________________________
INTRODUCTION
1. GLP challenges the decision by the Defendant (“the Authority”) to award a contract to
Public First Limited (“Public First”) for the supply of the following services to assist
the Government in the issuing of emergency messaging to support efforts to combat
Covid-19 (the “Contract”): recruitment and delivery of focus groups and/or mini groups
to an agreed specification, covering the general public and key sub-groups defined by
demographic, life-stage or other agreed criteria; same-day top-line reporting and next- day fuller reporting of focus group findings; and on-site resource to support Number 10
Communications.
2. In its Amended Statement of Facts and Grounds (“SOFG”), the Claimant contends that
the contract award is unlawful and ought to be quashed on three grounds:
(i) Ground 1: The Authority had no basis for making an award of the Contract to
Public First under reg 32 of the Public Contracts Regulations 2015 (“PCR 2015”).
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effective. It was important to ensure ideas were tested and correct; and not to act on
“hunches” as to what worked. The information gathered from focus groups was therefore
fundamental to the development of Government communication with the general public.
7. There were concerns that the Government’s communications were not as effective as
they could be, and were leading to confusion and concern amongst the public as the first
cases of Covid-19 were confirmed in the UK. There was also concern that PHE did not
have the right resources in place to meet the communications requirements of the
emerging pandemic. They did not have the people or skills needed to undertake this type
of public communications at speed, nor did the DHSC, the NHS or the Cabinet Office.
As a consequence, it was necessary to procure focus group services from external
providers.
8. The seriousness of the pandemic, the importance of effective communications to the
central aim of seeking to protect the public, and thus the urgency with which this work
needed to be progressed were all clear. As noted by Mr Cummings in his statement:
“There is no doubt that the Covid pandemic represented a situation of extreme urgency
where immediate action was required to save lives. Focus groups were a crucial part of
the Governments’ communications strategy...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.”
9. On 27 February 2020 Alex Aiken, Executive Director of Government Communication,
Prime Minister’s Office and Cabinet Office Communications, raised with his team the
need for urgent focus group testing of Covid-19 matters, the results of which could be
provided to No. 10 the following day. Mr Aiken was aware that Mr Cummings had
concerns about the approach taken to date; and wanted some research to be done in the
regard ahead of a meeting he had scheduled with Mr Cummings the following day. Helen
Stratton, Head of Insight, Government Communication Service, Prime Minister’s Office
and Cabinet Office, knew that Public First was scheduled to conduct focus groups in
Crawley that evening pursuant to the arrangement detailed in §4 above; and she
recommended using Public First to conduct the Covid-19 focus group research. This was
the only available option which allowed the research to be done that night. Alex Aiken
accepted this recommendation and requested Helen Stratton to take it forwards. Helen
Stratton briefed Public First to change the focus groups in Crawley to Covid-19 research
work that evening and to report the results promptly. Public First provided the results to
No. 10 the next day.
10. At 3pm on 28 February 2020 there was a meeting at No. 10 attended by, inter alia Helen
Stratton, Alex Aiken and Dominic Cummings as well as Gabriel Milland and Person J
from Public First. The key purpose of the meeting was to start work on a very
significantly increased programme of communications to seek to ensure that clear and
effective communications could be used in responding to the pandemic. Representatives
from Public First were asked to attend so that they could provide feedback at the meeting
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on the research that had been done to date. At this meeting, the decision was made to
carry on with focus groups and to authorise continued research of this kind for all of the
reasons set out above. A steady flow of research to decision makers (including No. 10
and the Chief Medical Officer and Chief Scientific Adviser) was considered essential.
11. It was decided that Public First conduct focus groups the following week, alongside
Britain Thinks. The reasons for that decision were as follows:
(i) There were only two companies in the market that had the scale, expertise and
experience to provide the requisite services in March 2020, being Public First and
Britain Thinks. These were highly specialised services. In contrast, for example,
YouGov and Kantar are primarily quantitative research agencies which do not
specialise in focus groups of the type required to test the sort of government
policy and narrative that was in development.
(ii) Public First were trusted and known to be capable of undertaking these services
speedily and effectively. This was extremely valuable as “in such a high pressure
environment trust is very important”; and as Ms Hunt notes “This was not the
time to take a punt on new agencies.”
(iii) Public First was already in place conducting the research. Using them was the
most efficient and effective way of getting urgently needed research done. It
would have been “utterly impractical” to find another agency to conduct focus
groups for that weekend and the following week.
12. Helen Stratton took this forward in the first instance and met with inter alia Gabriel
Milland from Public First later that day to devise a plan of how the focus groups work
would be carried out over the weekend and the following week. The outline plan
produced was sent to Alex Aiken who, on 29 February 2020, approved the plan for the
initial work. This work was charged at per focus group because Public First had
to recruit participants urgently and could not recruit in the standard manner which
normally took 7 to 10 days. The services provided by Public First were: (i) the
recruitment and delivery of focus groups and/or mini groups to an agreed specification,
covering the general public and key sub-groups defined by demographic, life-stage or
other agreed criteria; and (ii) same-day top-line reporting and next-day fuller reporting
of focus group findings (“focus group services”). (“Same-day top-line reporting” is
providing information on the day of the outcome of the focus groups; “next-day fuller
reporting” is a more detailed report on the outcome of the focus groups.)
13. On 5 March 2020, Public First said that it could provide further focus group services for
the following week, initially at a cost of per focus group and then for later
groups once it had more notice to recruit the focus group participants. Mr Aiken
authorised the use of these further focus Group Services and the additional expenditure
associated with that. The use of focus group services continued to be authorised in a
similar iterative manner as they were needed until more formal arrangements were
ultimately put in place (see §§19 to 23 below).
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Mr Milland
14. Mr Cummings called Rachel Wolf at Public First to ask if they would allow Gabriel
Milland to work in No. 10 on Covid-19 related matters. He did so on the basis that Mr
Milland had considerable experience of government, and expertise and experience in
communication and research; and that Mr Cummings had worked with Mr Milland
previously and had a high regard of his abilities, expertise and experience. On 16 March
2020, Mr Milland started working in No. 10. Mr Aiken subsequently approved the
reimbursement of Mr Milland’s salary and Mr Milland was engaged through Public First.
He was not employed directly by the Cabinet Office or seconded to them. Mr Milland
ceased to work at No. 10 on 26 June 2020. Thus, he worked for approximately 4 months
at No. 10 to assist with communications at the height of the crisis.
Procurement Processes
15. Reg 32(2)(c) of PCR 2015 was not specifically considered at the time these decisions
were made. However, it was clear to all involved that the conditions for its application
were fulfilled. All those involved were acting rapidly in light of a national emergency in
order to save lives. The information from Covid-19 focus groups was required
immediately, and had to continue to be provided at pace, and with trusted efficiency and
effectiveness, in order to ensure that health messaging in relation to Covid-19 was as
effective as possible. Likewise, the on-site support at No.10 was required as a matter of
urgency. There was no time to conduct even an accelerated procurement exercise for
this work.
16. To place these matters in context the following timeline is indicative:
(i) Wednesday 4 March 2020: DHSC launched a public information campaign on
handwashing. There were 34 recorded cases of Covid-19 in the UK. Italy
announced it was shutting schools and universities.
(ii) Wednesday 11 March 2020: the Chancellor announced a £12bn package of
emergency support to help the UK cope with the expected onslaught from
coronavirus.
(iii) Friday 13 March 2020: widespread cancellation of sporting events including
Premier League football and the London Marathon.
(iv) Monday 16 March 2020: the Prime Minister began daily press briefings and
urged everybody in the UK to work from home and avoid pubs and restaurants to
give the NHS time to cope with the pandemic.
(v) Wednesday 18 March 2020: the Government announced that most schools across
England would shut from Friday 20 March 2020. The Welsh and Scottish
Governments also announced that they will close schools.
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(vi) Friday 20 March 2020: the Government ordered all pubs, restaurants, gyms and
other social venues across the country to close. The Chancellor announced the
“furlough scheme”.
(vii) Monday 23 March 2020: the Prime Minister, in a televised address to the nation,
asked Britons to “stay at home, protect the NHS and save lives” and only go
outside to buy food, to exercise once a day, or to go to work if they absolutely
cannot work from home.
(viii) Thursday 9 April 2020: the UK recorded its highest Covid-19 daily death toll at
938 deaths.
(ix) Sunday 10 May 2020, Prime Minister announced limited plans for the easing of
lockdown;
(x) Sunday 24 May 2020, it was announced that schools would re-open on a limited
basis from 1 June 2020.
17. In March 2020 most public servants moved to home working. However, this was
impractical for centre of Government communication where co-ordination, rapid
decision making, face to face consultation and the commissioning and sharing of research
and evaluation were critical. A Communications Hub covering media, marketing,
research, behavioural science, digital, evaluation, international and stakeholder
communication work was created in a week going from a staff of 6 to ultimately a staff
of 200. There was no previous model for an operation of this scale. It had to be
constructed quickly to deliver essential public information in the middle of a pandemic.
The Hub served a range of political and official requests and senior staff attended a large
number of meetings across the week. Communications advice, research, evaluation and
marketing plans were needed to support these meetings. These needed to be updated daily
to reflect the developing scenario and advise on public attitudes and the likely response
to the information campaign.
18. There was no time in the critical situation to conduct formal procurements for the services
required. Normal procurement processes took 6-8 weeks in practice. That would have
been entirely impractical in the circumstances. Even an expedited procurement of two
weeks would have taken too long. This was compounded by the difficulty of resourcing
a procurement. Drafting a specification and assessing bids takes time and the team was
already working all available hours, 7 days a week to meet the demands of the crisis.
Formalisation of the Contract
19. In late March 2020 the Cabinet Office, with the assistance of the Crown Commercial
Service (“CCS”), began the process of formalising the arrangements with Public First.
This was a slow process due to the immense pressures on CCS and the Cabinet Office at
that time.
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the Contract were delivered in March and April; and by May 2020 the work had tailed
off significantly.
Payments made to Public First
25. The sums charged by Public First for the work they undertook were in line with typical
industry costs. Indeed, the Claimant’s own evidence, albeit of limited value given it has
been gathered from unnamed “experienced professionals”, is that a “typical 2-hour
focus group would cost in the region of £5,000” (see First Witness Statement of
, paras 11 and 17). Public First’s charge of per focus group falls well
below that level. Even the higher rate of per focus group, charged in relation to
some of the early focus groups to compensate for the additional costs of recruiting focus
groups on very short notice, falls below the £5,000 average. Thus the sums charged were
not in any way disproportionate and amounted to an entirely fair price.
26. The Contract value was estimated as £840,000 (excluding VAT) to provide flexibility to
procure additional focus groups services as required. This was considered necessary as it
was uncertain what the future demands would be as the pandemic unfolded although it
was recognised that the expenditure could be lower. The sum of £840,000 plus VAT
represented the total possible spend for the contract rather than the actual sum that was
intended to be spent. Under the Contract the following payments were made to Public
First for Covid-19 related work:
Date Payment Work Done
18 March 2020 £58,000 focus groups over
the period 3 March to
15 March 2020 in the
following locations:
London, Manchester,
Bristol, Brighton and
Liverpool.
2 April 2020 £42,000 focus groups over
the period 17 March to
24 March 2020 in the
following locations:
London, Swansea,
Notts/Derby, Watford
and Altrincham.
2 April 2020 £15,000 focus groups over the
period 24 March to 26
March 2020 in the
following locations:
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reach and BAME
groups) in the following
locations: Nottingham,
Liverpool, Walsall,
Portsmouth, Newcastle,
Glasgow, Norwich,
Aberystwyth,
Manchester from 26
April to 12 June.
(£10,792)
Mr Milland On Site
Resource ( days)
from
(£2395.07)
Mr Milland
Accommodation costs.
9 June 2020 £39,777.23
(£32,500)
focus groups
(including, hard-to- reach and BAME
groups) from 14 May to
28 May 2020.
(£6,248)
Mr Milland On Site
Resource ( days)
over the period
(£1029.23)
Mr Milland
Accommodation costs.
8 July 2020 £78,336.33
(£65,000)
focus groups
(including, hard-to- reach and BAME
groups) from 2 June to
2 July in the following
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locations: Plymouth,
Newcastle, Manchester,
London, Croydon,
Leeds, Liverpool,
Glasgow, Brighton,
Birmingham,
Nottingham, Leeds,
Manchester, Newbury,
Bradford, Sheffield,
Telford, Norwich,
Plymouth and Hull.
(£11,928)
On Site Resource (
days) over the period
(£1408.33)
Accommodation costs.
14 August 2020 £98,000 (£98,000)
focus groups from 9
July to 27 July in the
following locations:
Bexley, Derby,
Edinburgh, Glasgow,
Bradford, Newcastle,
Plymouth, Great
Yarmouth, Bristol,
South Cambs,
Manchester, Stoke,
Inverness and
Highlands
Total: £564,393.67
27. The payment on 14 August 2020 was for focus groups Public First provided that
were used to research matters relating to the government’s post-coronavirus economic
renewal work and focus groups used to research matters relating to the Union as well
as coronavirus. A payment of £75,000 was made to Public First on 20 March 2020 for
work completed in February and March 2020 but this was unrelated to the Contract.
28. Thus the total sum paid to Public First under the Contract was far below the estimated
Contract value. As can be seen from the foregoing table, there were some delays in
Public First’s invoices being paid in the early stages. This was due to the fact that, at
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the start of the contract, there was no formal written contract in place which created
internal procedural difficulties in generating the necessary purchase order (“PO”)
numbers required for a payment to be made. The requisite PO numbers were generated
once Person E, HR, Business and Finance Lead, Prime Minister’s Office and Cabinet
Office Communications, was confident that the payment of the sums had been approved
at the requisite level by Alex Aiken.
29. The payments made to Public First on 18 March 2020 and 2 April 2020 were made using
the EU Exit cost centre code because at that time a payment code for Covid-19 related
expenses had not yet been set up. Nonetheless these payments were for Covid-19
research.
GROUND 1: REG 32 OF PCR 2015
30. First, the immediate and continuing provision of the Services was necessary. There were
immediate and the most serious public health risks. Communications and the
development and implementation of the most effective public communications strategy
possible were of paramount and immediate concern. The Services were essential to that
aim. It is clear that the Authority made the direct award for reasons of extreme urgency.
31. Secondly, the pandemic was so novel and fast developing and of such a scale that the
Authority could not have predicted it or the need for the Services to respond to it. The
Authority did not do anything to cause or contribute to the need for extreme urgency.
32. Thirdly, there was no time to run an accelerated procurement under the open or restricted
procedures or competitive procedures with negotiation. There was also no time to place
a call off contract under an existing commercial agreement, such as a framework or
dynamic purchasing system. It is also to be noted that any procurement run at this time
would have had to be conducted on a basis which would comply with the constraints
imposed by the lockdown and social distancing, i.e. a virtual procedure. That mode of
procurement would be wholly unprecedented, was clearly never contemplated by the
legislature when adopting Directive 2012/24/EU and/or the Public Contracts Regulations
2015, and would clearly have substantial implications for the minimum periods within
which any procurement could properly be conducted.
33. Fourthly, other suppliers were not used because they could not provide the requisite
services. Companies like Kantar and YouGov Plc were not viable alternative providers
because they were primarily quantitative research agencies which do not specialise in
focus groups of the type and scale required to test government policy and narrative that
was in development.
34. The conditions for the application of reg 32(2)(c) were thus met. Such an award is also
in accordance with the “Guidance from the European Commission on using the public
procurement framework in the emergency situation related to the COVID-19 crisis” (the
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“Commission Guidance”). As the Commission Guidance correctly recognises, “for a
situation such as the current COVID-19 crisis which presents an extreme and
unforeseeable urgency, the EU directives do not contain procedural constraints”.
GROUND 2: PROPORTIONALITY OF A SIX-MONTH AWARD
35. The six-month award to Public First was not disproportionate in the unusual
circumstances of this case.
36. First, as noted above, the scale of the national emergency was unprecedented in
peacetime; and the provision of Services was essential to ensure effective
communications of vital health messages to the public.
37. Secondly, the Authority could not risk the Contract expiring before the peak of the crisis
had passed. At the time these matters were determined there was no certainty as to exactly
how the pandemic would unfold or what would be required to fight its impact. There
was, as noted above, discussion about the appropriate length of the Contract. The
decision to make it a six month period was reasonable and proportionate (and indeed the
shortest realistic period) given the anticipated continued need for the Services, their
importance and the considerable uncertainties at the time. So too was the decision to
structure the Contract in summary as a ‘call off’ contract – so that only Services
considered to be necessary from time to time would be called for and paid for.
38. Thirdly, all those involved were having to deal with an immense workload. It would
have been disproportionate to divert their attention and efforts from the critical, and
pressing, to have to conduct a procurement exercise for the Services.
39. In so far as the potential use of the Dynamic Procurement System is concerned, for the
reasons set out in §37 and 63 of Catherine Hunt’s witness statement and 19x of Alex
Aiken’s witness statement, even by using an accelerated process under those
arrangements it would not have been possible to put a contract in place before the end of
March 2020. For the reasons set out above, that would have been far too late for services
which were urgently needed from late February 2020. Moreover, for all the reasons set
out above, the six month award was a proportionate response in the circumstances.
GROUND 3: APPARENT BIAS
40. The test for apparent bias was formulated by Lord Hope (citing Lord Phillips of Worth
Maltravers MR in In re Medicaments and Related Classes of Goods (No 2) [2001] 1
WLR 700) in Porter v Magill [2002] 2 A.C. 357 at 494, §§102-3: “The court must first
ascertain all the circumstances which have a bearing on the suggestion that the [decision
maker] was biased. It must then ask whether those circumstances would lead a fair- minded and informed observer to conclude that there was a real possibility, or a real