The “good grief” project

There are times when we should all welcome a little bias - even in government

In January of this year, Covid-19’s second wave was getting going. The vaccine program was just starting. And recently retired doctors wanted to return to work in order to help out. Famously, the reaction of the bureaucrats at the Department of Health was to provide applicants with a tidal wave of online modules to complete. The Times reported one doctor complaining that she was only a quarter of the way through after six hours of form-filling.

Writing in the Daily Mail, Prof Martin Marshall, chairman of the Royal College of GPs, expressed his despair at the notion that former medical professionals were required to provide documentary evidence that they have been instructed in equality, diversity and human rights before being allowed to deliver vaccinations.

Over at the Cabinet Office, civil servants had been taking a very different approach to fighting Covid. They needed to figure out how best to persuade the public not to spread the disease, how to be safe, and even to stay at home. The Cabinet Office appointed Public First, a tried and tested public policy and research firm, to carry out the research needed urgently to figure out a way forward.

The Cabinet Office made their decision instantly. In doing so, they dispensed with the usual process of inviting firms to tender. Selecting a firm on the basis of formal tenders takes a minimum of four weeks and, typically, much longer. But people were dying. Covid was spreading at an exponential rate. The work needed to start right away. The Cabinet Office even dispensed with the “expedited” process, which would have reduced the timescale to around two weeks.

As we now know, scientists had originally advised ministers that the public would only tolerate a short lockdown. But that advice was wrong. It led to the first lockdown being delayed in the mistaken belief that it could only last for a matter of a few weeks. That delay is now widely believed to have cost lives – many lives. I don’t blame the scientists. Their view was eminently reasonable at the time. But Covid changes everything.  

Well, almost everything. Over at the Good Law Project – a group led by tax lawyer, Jolyon Maugham QC – the team was avidly pursuing its goal to “defend, define and change the law to … ensure no one is left behind.” In their view, that meant complaining about the decision to bypass the normal selection process.

And when I say “complaining”, I actually mean “suing”. They launched a legal action, claiming that (1) there was no basis for dispensing with the usual selection process; (2) it was “disproportionate” to appoint one firm to do all the work for six months; and (3) the decision gave rise to “apparent bias”.    

The court handed down its judgment yesterday. The judge held that it was OK to dispense with the selection process and it was not excessive to award a six-month contract. But there was a sting in the tail: awarding the contract to Public First “gave rise to apparent bias” and was, therefore, unlawful.

I think we should all heave a huge sigh of relief that the Good Law Project lost on the first two grounds. Just as we all heaved a sigh of relief – and I’m sure it was all of us, even the Good Law Project – when the Department of Health waived the normal requirements so that returning doctors could assist with vaccinations, so too should we be pleased that planning public policy in a future pandemic won’t have to be put on hold for several weeks while civil servants prepare, and firms to respond to, formal invitations to tender.  

That still leaves the third issue in the case. The court says the appointment gave rise to apparent bias. But isn’t that exactly what we want in a situation like this? When the chips are down and an adviser is needed urgently, I don’t want our government to pick a random stranger and hope for the best. Working with someone they knew, someone they trusted, someone they had worked with before: those all are positive factors that favour a candidate when there isn’t time to carry out a carefully planned selection.

Back at the office of the Good Law Project, they were quick to declare that the result “vindicates” their “long-running characterisation of pandemic procurement as ‘institutionalised cronyism’.” Anyone reading that sentence might reasonably infer that the Good Law Project, itself, is biased - biased against this government. That’s not a problem. They are, of course, allowed to be biased and to act upon their biases any time they wish to. It’s just a great shame that they can’t see that there are times when we should all welcome the Government doing likewise.

UPDATE: The judgement has since been appealed and, this time, the Government won all three elements of the case. The Court of Appeal held that there was a “tension” between the judge's finding, on the one hand, that the emergency circumstances justified the award of a contract without competition and, on the other hand, that the Minister was nevertheless required to consider other agencies and keep a record of the objective criteria used.

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