In his ever-expanding Twitter thread on the government’s response to the pandemic, Dominic Cummings recently took aim at the High Court’s judgment on the award of a government contract to Public First, an award for which he was in practice largely responsible. In judicial review proceedings brought by the Good Law Project (GLP), Mrs Justice O’Farrell found that the award of a focus-group contract—to a company led by friends and long-term associates of Cummings—was unlawful on the basis of apparent bias. Cummings complained that the High Court was saying that “instead of telling officials to focus on the worst crisis since 45, a disease x2 in 2-3 days, I [should] have told officials to focus on creating a Potemkin paper trail to negate campaigners claiming ‘appearance’ of bias.” He went on to claim that judicial review—or, as a government publication famously puts it, “the judge over your shoulder”—forced a damaging concentration on “paper trails” over “effective action,” and pointed at procurement rules (still based on the EU model) as a particular problem. Danny Finkelstein made similar points in an article in the Times, though he argued that “preparing paper trails and ensuring you abide by the law, however bureaucratically inconvenient, is not a waste of time” and was worth a sacrifice of boldness and dynamism.
In fact, however, the GLP case provides no support for the thesis that procurement rules and a judicially-imposed requirement to generate paper trails impede effective government. As far as the procurement rules were concerned, the High Court actually upheld the government’s use of emergency procedures. The difficulty for the government was the issue of apparent bias in the decision to select Public First. (It may be noted that the court wasn’t asked to decide whether there was actual bias in that decision.)
The rules in English law about apparent bias are of very long standing and apply to a large range of administrative and judicial decisions. The basic insights behind those rules are that actual bias can be very hard to prove (you cannot see into the decision-maker’s mind, and even if you could subconscious bias is as bad as conscious bias), and that the perception that a decision-maker has favoured his friends or her political associates is in itself deeply damaging to good government and to the judicial system. In determining whether there has been apparent bias, the courts apply the standard of whether a fair-minded and informed observer would conclude that there is a real possibility of bias (a standard that obviously leaves some room for argument in grey cases: indeed, High Court judges are sometimes overruled in applying that test by higher courts).
The GLP judgment is itself a classic of the flexible and fact-sensitive way in which the test is applied. The judge did not accept that Cummings’s friendships (which he acknowledged in evidence) automatically meant that the decision to award the contract was tainted by apparent bias: she accepted that the world of experts in running focus-groups is a small one and that anyone with expertise in the area was likely to have friendships with key players. But she identified another problem: the decision was not based on any assessment of what the criteria for selection were or whether there were any alternative providers. In the absence of a sense-check of that kind, she concluded that the fair-minded observer would suspect bias.
None of that supports the “paper trail” critique. The problem wasn’t the absence of a paper trail setting out an exhaustive list of criteria and discussing all possible alternative contractors: the problem was that the judge found—on the basis of what Cummings himself said about why he took the decision in his evidence—that Cummings (and hence the department that he was effectively directing) did not address his mind to the issues of criteria or alternatives at all. It was a problem of substance—what the decision was—not a problem of form or record-keeping.
In a subsequent tweet, Cummings made an additional complaint, arguing that the judge went wrong by “substituting her judgement [on selection criteria and possible alternatives] for mine.” The claim that judges wrongly substitute their views for those of ministers is a familiar complaint made by critics of judicial review: but it has no basis in the GLP case, because the judge was not saying that the wrong criteria were adopted or that alternatives were rejected for the wrong reasons but, rather, that on the basis of what Cummings himself said in evidence, no criteria were adopted and no consideration was given to possible alternatives.
Fundamentally, therefore, the GLP case does not support the thesis of a tension between effective decision-making and what public law requires. Rather, the problem identified by the judge was that elements critical to any effective procurement decision—even in a crisis—such as working out what was needed, and who could best meet that need, just weren’t there, and that in their absence a reasonably-informed observer would have said that there was a real possibility of bias.
Leaving aside the GLP case, is there any truth in Cummings’ thesis (which Finkelstein agrees with, although he draws different conclusions from it) that judicial review forces officials to concentrate on paper trails rather than effective action?
A preliminary point is that, though an obsession with recording things can at some point obviously become a vice, “paper trails” (at least in the form of recording what decisions have been taken and why) are actually essential to effective government, rather than a hindrance to it. The lack of institutional memory is a serious problem in government (made worse, as Cummings rightly points out elsewhere, by too frequent moves of senior officials and experts, but also made worse by sometimes chaotic keeping of electronic records and use of unofficial channels such as WhatsApp). And being able to remember what decisions were taken and why is perhaps more, rather than less, important for effective government during a period of unprecedented national crisis.
But the more fundamental point is that judicial review is not about paper trails. In fact, administrative court judges almost always accept what officials say in witness statements about what decisions were taken and the reasons for them, even if there are sparse supporting documents: and by the standards of modern litigation, judicial review cases are on average “document light.” In occasional cases Whitehall officials or ministers (not, usually, government lawyers) think that a “Potemkin,” or sham, record or meeting can assist in defending a difficult decision: but they are usually disabused of that idea by good legal advice.
Nor are judges eager to catch governments out over missing paperwork or, indeed, to substitute their own assessments for those of ministers: if you leave aside cases where there is a real issue about what the government’s legal powers are or where legal issues such as human rights are in play, the courts very rarely—even where the paper trail is less than impressive—overturn decisions taken on grounds that are at least plausible, that deal with issues that the relevant statute says must be looked at, and that the government is prepared to set out and defend in public as the basis of its decision. Granted, it is rarely possible to say a decision carries no risk of successful judicial review, and there are certainly cases where the existence of a risk is used to justify inaction: but effective ministers are ones who look at the extent of that risk, make sure they understand it, and put it in the balance along with other factors.
Those points are particularly worth making at the moment because the institution of judicial review is under attack by the current government—an attack for which, in his thread, Cummings claims credit for getting started. As matters stand, and as explained by the Administrative Law Bar Association, the government has gone beyond the moderate reforms suggested by the Independent Review of Administrative Law, which it set up last year, and is proposing to remove the possibility of judicial review from certain kinds of decisions and to reduce the ability of those going to court to get effective remedies if they win. Finkelstein rightly cautions against such attacks on judicial review. But in defending judicial review against such attacks, there is no need to give ground to Cummings’ claim that the judge over your shoulder requires wasteful generation of paper trails and constrains effective decision-making. In truth, the judge over your shoulder is the friend, not the enemy, of effective—as well as lawful and accountable—decision-making.