Was Michael Gove right about court ruling over bias in contracts?

“The High Court has found that you broke the law last week in your department’s awarding of a £500,000 contract to Public First, which was run by your friend and former special adviser James Frayne. That’s a breach of the ministerial code [...]”

“Well the first thing to say is that the decision to award that contract was not my decision [...] And it’s important also to say that the court didn’t find evidence that I had tried to influence this particular contract, and what we were doing across government at that time was responding to a very, very challenging situation and the court found that there was no actual bias in the decision that was taken by others to award this contract [...] there was no breach of the ministerial code.”

During an appearance on Sky News on 15 June, Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster Michael Gove was asked about a recent ruling at the High Court on the government’s decision to award a £560,000 contract to marketing agency Public First during the pandemic. The agency is run by former colleagues of both Mr Gove and Dominic Cummings, the former chief adviser to the Prime Minister. 

Mr Gove insisted the High Court did not find “actual bias” in the decision to award the contract, and there was no breach of the ministerial code. We take a look at what the ruling found. 

What was alleged?

The legal action was taken by The Good Law Project into the decision to award the contract to Public First “for the provision of focus group and communications support services.”

It challenged the decision to award the contract on three grounds: that the government didn’t have the basis for awarding the contract without competition, that the award of the contract for a period of six months was disproportionate, and that the decision to award this contract to Public First gave rise to “apparent bias”, as observers would conclude there was bias due to the connections between Mr Cummings, Mr Gove and the directors of Public First.

Lawyers for the Cabinet Office disputed the claims and argued that there was no time to run a procurement process due to the pandemic, and the decision to award the contract was based on professional assessment rather than personal connections. 

They argued that “in all the circumstances of the case, a fair-minded and informed observer, who had knowledge of the facts, would not conclude that there was a real possibility that the decision maker was biased.”

What was ruled?

The claimant failed on the first two grounds. However, the judge held that the decision making process which led to the award of the contract did give rise to “apparent bias” and so was unlawful.  

The ruling said: “The defendant's failure to consider any other research agency, by reference to experience, expertise, availability or capacity, would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, that the decision-maker was biased."

But it also added: "The fair-minded and informed observer would have appreciated that there was an urgent need for research through focus groups on effective communications in response to the Covid-19 crisis and that those research services were required immediately."

The ruling also stated that neither Mr Gove nor Mr Cummings “had any involvement in the appointment of Public First” to carry out initial work in February 2020. This work then turned into a six month contract, awarded in June 2020. The ruling does not state whether or not Mr Gove had any involvement with the awarding of this contract.

Mr Gove said on Sky News that the court found there was “no actual bias” in its ruling, something which was disputed by The Good Law Project’s director Jolyon Maugham on Twitter.

What is important here is that there is more than one kind of bias. ‘Actual bias’ means that the decision-maker was prejudiced in favour or against a particular party (in this case Public First), while ‘apparent bias’ means that a fair minded and informed observer would conclude that there was a real possibility of bias. 

In the ruling, it clearly states: “There is no suggestion of actual bias in this case. The allegation is that the circumstances in which the contract was awarded to Public First gave rise to apparent bias.”

It also states: “It is emphasised that the court is not concerned with any suggestion of actual bias. But as explained above, the absence of actual bias is not in itself a defence to an allegation of apparent bias.”

This means that the court did not find actual bias in this case. Actual bias was never alleged by The Good Law Project or examined by the court.

Therefore Mr Gove’s claim that “the court found that there was no actual bias” is wrong.

What about the Ministerial Code?

The Ministerial Code is a set of rules and principles which set the standards of conduct for government ministers. It is not legally binding. 

The Institute for Government explains that, when a break of the UK Ministerial Code is alleged to have taken place, “whether and how it is investigated is entirely at the prime minister’s discretion.”

The Ministerial Code says: “Holders of public office must act and take decisions impartially, fairly and on merit, using the best evidence and without discrimination or bias.”

Labour has demanded an investigation into whether Mr Gove breached the code following the ruling. However, the Cabinet Office has said there will be no investigation as Mr Gove was not personally involved in the decision to award the contract.