The High Court's ruling that Boris Johnson's government broke the law by awarding a Covid contract worth £560,000 has been loudly celebrated by campaigners. 'The Government’s handling of pandemic procurement was a kind of institutionalised cronyism,' said Jolyon Maugham, from the 'Good Law Project', which brought the case. But this isn't quite the victory it is being made out to be.
It's true that judges did decide that the contract handed to Public First, a communications firm, was unlawful because of a risk of apparent bias. But the Court rejected two of the three things the Project complained about. It also refused to quash, or end, the contract.
So was the government right to hand a contract to a firm which had connections with cabinet minister Michael Gove and Boris's former adviser Dominic Cummings?
For judges deliberating on this question, they encounter an issue: the problem with ‘apparent bias’ is that it is fundamentally not real. Apparent bias means ‘an appearance of bias’; or more precisely a judge's fear that a reasonable person might worry that something that was not bias, nonetheless looked biased. It is totally different from actual bias.
During February and March 2020, the world had been hit by a pandemic, a once-in-a-generation emergency. In early March, Public First was doing things to help the government in its response. Not until June was the company given the contract. Without the contract it wouldn’t have been paid.
The court decided that giving the company the means to get paid for its work in June was unlawful. Why? Because there was a risk of apparent bias in the decision to award the contract and not to consider another company for the work.
The government was wrong not to consult other companies, the judge decided. But the judge did not say the government was corrupt in making its decision.
Anyone worried this means the government is corrupt should take comfort in the fact that ‘apparent bias’ is the reason most commonly used to get a judge to stop hearing a case. No one for a moment thinks or suggests the judge in question actually is biased. But the risk that he or she might look bias is considered so bad, that the law takes action.
The Court was applying that same high standard to the government: that a reasonable person's view of the awarding of the contract might be that it looks a bit fishy (but isn’t) because no other company was considered.
The judge wasn’t telling you what to think of the fact that a contract was awarded without other companies being considered during the pandemic.
The judge was saying that, in the middle of a pandemic, you still have to carry out a consultation. Tick all the boxes, dot all the Is, cross all the Ts. That might sound strange, but this area of law puts form over substance.
The court isn’t making a political decision when it does so, however. That is why the only thing the claimant won was the declaration that the contract wasn’t given legally. How you feel about the importance of that during the middle of a pandemic is up to you. But it is important that the judge's decision here is not seen as something it isn’t.