The Good Law Project and the Role of Citizens in Fighting Corruption in Britain: What Lessons for Africa?
The Covid era brought to light widespread acts of corruption across the world, including in North and South America, Asia, and Europe. National elites, leveraging their proximity to the centres of State power, ruthlessly exploited the Covid pandemic, a human tragedy of near biblical proportions.
It is a truth seldom acknowledged, that the propensity of national elites to loot the wealth of the people through public procurement systems transcends race, bears no allegiance to political party affiliation, and is not unique to Africa ; it lies deep within a human condition common to us all, a condition nurtured by a system that celebrates the endless accumulation of personal wealth as the ultimate good – a system that has made a virtue of unrestrained greed.
In Richard II, William Shakespeare’s history play, John of Gaunt, a royal prince, military leader and statesman who lived in the 14th century, gives a withering commentary on corrupt practices by England’s ruling elite. Lying on his death-bed, in his final moments, he accuses King Richard of surrounding himself with sycophants and cronies, abusing vast amounts of public money, and forsaking the duty of a monarch ordained by God, to promote the welfare of his subjects. He concludes his speech, one of the most famous in English literature, with these words:
“That England that was wont to conquer others,
Hath made a shameful conquest of itself.
Ah, would the scandal vanish with my life,
How happy then were my ensuing death!”
It is fair to point out that, in modern times, Britain’s reputation as a country relatively free of corruption has been the envy of the world. But recent years have witnessed a steady stream of investigative reports in the UK media, raising serious concerns about a lack of probity in the British establishment.
Amidst growing and widespread fears that the ethos of integrity that underpins the conduct of Britain’s public affairs was ebbing away, UK Citizens have come forward to provide financial support for the work of the Good Law Project, a not-for profit organisation that uses the law to fight for transparency and demand good governance from those in positions of power.
The view that corruption has held back Africa’s renaissance and extinguished the dreams of successive generations is widely held, not only amongst Western nations, but in Africa itself. In Zambia, Malawi, Zimbabwe and other countries in Africa, Anti-Corruption Commissions are making modest progress in fighting corruption, with ordinary citizens playing, at best, a minimal role.
The work of the Good Law Project and the judgments flowing from their litigation program are a compelling example of how citizens in Africa, who believe in the law’s potential to achieve positive change, can play an important role in fighting corruption in public procurement. In a series of recent procurement cases involving challenges brought by the Good Law Project, the London High Court lays down exceptionally high standards of transparency expected of public officers exercising public procurement functions, and makes landmark rulings, extending to ordinary citizens, the right to challenge a decision by a public body to award a procurement contract, on the grounds of a breach of the principles of impartiality and transparency.
Media reports pointing to declining standards in the conduct of Britain’s public affairs are an essential backdrop to this story- they go some way towards explaining why ordinary UK citizens have felt the need, in such significant numbers, to fund the work of the Good Law Project.
David Cameron and the Missing Billions
In 2016 former British Prime Minister David Cameron was heard whispering to the Queen, at an anti-corruption summit in London, that Nigeria was one of the most corrupt countries in Africa.
In August 2021 a BBC Panorama documentary, “David Cameron and the Missing Billions”, implicated the former Prime Minister in a major corruption scandal. The remarks of the chairperson of a Parliamentary Select Committee, that, “ no other Prime Minister in modern times has felt it appropriate to act in this way”, aptly summed up the gravity of the allegations the documentary makes against David Cameron
Panorama reveal how David Cameron had made a fortune promoting his Australian friend’s controversial loan scheme : During his term as Prime Minister, David Cameron struck a friendship with Lex Greensill, an Australian banker, to whom he accorded the rare privilege of occupying an office in 10 Downing Street as his unpaid adviser. Lex Greensill ran a finance company, Greensill Capital, whose pitch was that it specialised in short-term loans to businesses awaiting payment of invoices for goods supplied or services rendered. Money for the loans was sourced from investors who were assured that as actual invoices and genuine transactions backed the loans, they were making low-risk investments.
In 2018, two years after leaving office, David Cameron took a position as a part-time adviser to Greensill Capital – his mandate was to travel the world seeking investors. With David Cameron on board, Greensill Capital’s profits soared- but the Panorama documentary reveals that a significant amount of investors’ money was being used to make loans against the security of fake invoices, and that by 2020, at least two-thirds of Greensill Capital’s income was based on forged invoices. When the recipients of these loans began to default, Greensill Capital called in ex-British Prime Minister David Cameron to get the Reserve Bank of England to invest hundreds of millions of taxpayers’ money in Greensill Capital’s loan scheme. In 52 increasingly frantic text messages to Ministers and senior Treasury officials, David Cameron tried to use his influence as former Prime Minister to secure public funds to rescue Greensill Capital, a bank in which he had a very significant personal interest. But men and women of integrity in the British establishment stood firm and turned down his request.
An inquiry by a UK Treasury Select Committee concluded that David Cameron’s lobbying had not breached parliamentary rules, but found that he had shown “a significant lack of judgment….. especially given that his ability to use an informal approach was aided by his previous position of prime minister.”
Asked for his response, David Cameron, through his spokesperson, denied any wrongdoing, saying he knew nothing about imaginary invoices and had played no part in lending decisions. But the presenter points out that David Cameron’s role in Greensill had not been passive – he had attended board meetings and had ample opportunity to find out what was going on.
On 24 March 2021, Greensill Capital filed for bankruptcy, exposing investors who had relied on forged invoices to potential losses running into billions.
Panorama’s investigations revealed that for his two years of part-time involvement in a “dodgy loan scheme”, David Cameron had been rewarded a handsome £10 million before tax.
Corruption in Public Procurement in the UK during Covid.
In June 2020, relying on the UK government’s taxpayer-guaranteed Emergency Corona Virus Loan Scheme, Greensill Capital made seven loans of £50mllion each to companies with connections to Sanjiv Gupta’s GFG Alliance. All seven companies defaulted, leading the National Audit Office to warn of potential prejudice to the taxpayer to the tune of £335 million.
In November 2020 the National Audit Office published a report which revealed that Boris Johnson’s government had awarded £10.5bn worth of pandemic-related contracts without a competitive tender process. Companies with the right political connections were ten times more likely to get contracts for personal protective equipment; contracts had gone to jewellers, pest controllers, confectionaries and other companies formed within days of the UK Government announcing its intention to procure goods and services relating to Covid 19.
In early 2022 a Sunday Times report exposed the existence of a secret advisory board comprising more than a dozen Conservative Party donors, with rights of direct access to former Prime Minister Boris Johnson, his ministers and advisers in 10 Downing Street. During the Covid pandemic, these tycoons used their privileged access to influence the UK government on procurement strategies and secure lucrative public contracts.
Even Rishi Sunak, Britain’s new leader, is not left entirely without blemish. In January last year a senior Conservative Minister resigned in protest over Sunak’s failure, during his term as Chancellor of the Exchequer, to stop the abuse of pandemic support loan schemes. Billions were lost to fraudulent Covid loans.
The storm caused by the Covid procurement scandal shows no sign of abating any time soon. In the last three months:
- The UK Guardian reported that members of parliament across the party divide were demanding an investigation into wider concerns over what one MP called “absolutely sickening, shameful and unforgivable instances of politically connected firms profiteering from unusable PPE during the pandemic.”
The Guardian article points out that Transparency International UK have raised concerns that at least 20% of the £10 billion PPE contracts awarded during Covid may have been tainted with corruption.
- Amidst a wave of looming strike action for better pay across all essential services, the Sunday Times carried a story in which a senior nurse said he and his colleagues had been left with no option but to strike. Commenting on the Government’s stance that it did not have sufficient money to meet the wage demands, the nurse said – “ there has been money found for things like the PPE scandals and the VIP contract lane. The money was found for those things which delivered very little value to the British people.”
In a separate feature article in the same Times edition, a team of investigative journalists publish a PPE Rich List, with full details, including photographs of the chief executive officers of a handful of British -based firms that were awarded the biggest contracts, amounting to billions, to supply medical protective gear, much of which remained unused as it was not fit for purpose.
- Last December an ethics committee led by Akbar Khan suspended two peers from the Upper House for long periods for taking thousands of pounds from companies in breach of parliamentary rules. Leaked documents showed that one of the peers, the Earl of Shrewsbury, had boasted of having “ extremely high level contacts at the very top end of the feed chain that could open doors”.
In response to the Panorama documentary, former Manchester United player, Gary Neville, had promptly tweeted: “ We are being robbed in cold day light (sic).”
Challenging procurement corruption through judicial review proceedings – emerging legal principles
Three recent judgments of the High Court in London involving challenges to decisions made under the UK’s procurement regulations are instructive and mentioned here; one of them, the Public First case, is examined in some detail.
Good Law Project & Every Doctor v Secretary of State for Health & Social Care[ 2022] EWHC 46.
In a claim for judicial review, where nine contracts had been directly awarded to three suppliers, the High Court ruled that the UK Government had broken the law by running a special VIP lane through which well-connected members of the elite were awarded lucrative PPE contracts. The Court identifies, in uncompromising terms, the institutionalisation of special treatment for those connected to Ministers, as a grave violation of public law principles of equal treatment and transparency.
In Good Law Project & Others v Secretary of State for Health & Social Care,  EWHC 246, the Court ruled that the government had “acted unlawfully by failing to comply with principle of transparency ..and that there is now no dispute that in a substantial number of cases the Secretary of State breached his legal obligation to publish Contract Award Notices within 30 days of the award of contracts.”
In Good Law Project v Minister for the Cabinet Office & Public First Ltd, [ 2021] EWHC, Mrs Justice O’Farrell ruled that the UK Government had unlawfully awarded a £560 000 contract (‘the Contract’) to Public First Limited. The factual background to this case assists a fuller appreciation of the importance of the issues it raises.
In early February of 2020, as Covid19, showing scant respect for the geographical boundaries of sovereign nations, began stalking the world’s vulnerable, the UK government passed the Coronavirus Act 2020, amongst other containment measures, to meet the emerging crisis.
By mid-February 2020, with Covid related deaths mounting, the UK government decided that it was necessary to develop a communications strategy to help “it understand public opinion and guide it in a way that would influence public behaviour and mitigate the spread of the virus”. For that purpose, it set up a Covid 19 Communications Hub under the leadership of the Executive Director of Government Communications in the Office of the Prime Minister.
Senior civil servants in the Cabinet Office were responsible for executing the government’s communications strategy, but in reality, the final say lay with Dominic Cummings, at the time chief adviser to former Prime Minister Boris Johnson. Regarded by some as an eccentric genius, a journalist once wrote that Cummings’ obsessions were Leo Tolstoy’s Anna Karenina, maths, Otto Von Bismarck, and Sun Tzu, the Chinese military strategist and philosopher.
The Public Procurement Regulations in force at the time provided that, in cases of extreme emergency brought about by unforeseeable events, a contracting authority may award a public contract directly through a negotiated procedure without observing tender procedures.
Dominic Cummings’ view was that the government’s agencies did not have the capacity to carry out an effective Covid 19 communications strategy with the urgency and expertise required; he wanted focus group services to be outsourced to a private contractor. In February 2020, in a meeting at 10 Downing Street, he recommended that Public First, a company specialising in opinion research on complex public policy issues as well as policy analysis and communications, should be appointed to run the focus groups.
On 15 May 2020 the UK Cabinet Office asked Commercial Crown Services to finalise the Contract. Commercial Crown Services is a public body exclusively concerned with public procurement; its functions include vetting suppliers, reviewing their performance, obliging them to improve value and service over time, and ensuring that contracts comply with public sector procurement regulations and transparency obligations.
On 5 June 2020, following a request by Crown Commercial Services that the contract term and price be reduced, an amended Contract, to take effect retrospectively from 3 March 2020, was formally awarded to Public First.
On 10 July 2020 the Good Law Project commenced judicial review proceedings, challenging the decision to award the Contract to Public First, on the grounds that it was tainted with apparent bias and therefore breached the impartiality principle of public law.
The case raised two issues: firstly, whether the Good Law Project had the right to challenge the UK Cabinet’s Office decision to award the Contract to Public First, and secondly, whether the Public First Contract was unlawful as the circumstances in which it was awarded gave rise to apparent bias?
The First Issue: Whether the Good Law Project had the right to challenge the Cabinet Office’s decision to award the Contract to Public First?
Public law has traditionally leaned towards a restrictive approach to a person’s right to challenge government decisions by way of judicial review proceedings. This stance finds expression in the principle that a court will not entertain a person’s application unless they can prove a sufficient interest in the subject matter of the challenge. The requirement to prove a sufficient interest is grounded in legitimate policy considerations – giving ordinary citizens unrestricted rights to subject Ministerial decisions to independent review by the courts carries with it real risks to the effective administration of justice : if every Fungayi, Jabulani or Joffa were permitted as of right to bring such challenges, the courts would most likely be swamped with applications brought by mere busybodies with no genuine interest in the decisions they seek to challenge- the effective discharge of governmental functions would suffer.
But apart from legitimate policy-driven restrictions, the power that ordinary citizens can wield through challenging the legality of government decisions remains of real concern to many governments. Even in older democracies, the view that judicial review is an unwarranted intrusion by judges into the decision-making powers of elected governments holds some ground.
The question whether the Good Law Project had the right to challenge the award of a public contract to Public First required a consideration of the public procurement regulations, which, significantly, contained statutory remedies for the exclusive use of “economic operators”, defined as: “Any person or public entity or group of such persons and entities, including any temporary association of undertakings, which offers the execution of works or a work, the supply of products or the provision of services on the market.”
Taking note of these provisions and the fact that the Good Law Project was representing public and not private interests, the argument mounted by counsel for the UK Cabinet Office in opposing the Good Law Project’s right to challenge the government’s public procurement decisions, ran as follows:
- The public procurement regulations provided a complete “canon” for regulating procurement contracts with remedies designated for the exclusive use of economic operators ; therefore, the right of a non-economic operator to bring judicial review proceedings was severely circumscribed;
- The Good Law Project was not an economic operator; it was not in the business of tendering for public contracts for the supply of goods or services; it was merely a campaigning group, a complete stranger, with no particular interest in the communications sector, the sphere in which Public First operated;
- Consequently, the Good Law Project had neither a legal nor financial interest in the lawful operations of the procurement system on which they could base a claim to have a sufficient interest in their challenge; as a non-economic operator, they were not owed any duties under the regulations, and had no rights to enforce under the public procurement regulations.
But Justice O’ Farrell found that the Good Law Project had a sufficient interest, and took note of a 2010 Court of Appeal decision that had recognised a discernible shift by the courts towards a less restrictive approach to the common law right of ordinary citizens to bring under judicial review, decisions of the executive. Her ruling embraces these cardinal propositions:
- in principle, a failure to comply with procurement regulations is an unlawful act, that renders the decision of the awarding authority amenable to scrutiny through judicial review proceedings, at the instance of a person who is not an “economic operator.”
- a person who is not an “economic operator” may be regarded as having a sufficient interest in the executive’s compliance with public law’s principles of good governance if he can show that:
(i) the decision challenged affects him in some identifiable way; or,
(ii) the gravity of a departure from public law obligations justified the scrutiny of the court, and where appropriate, the grant of a public law remedy.
Applying these principles to the facts, the Court finds that:
a.The Good Law Project was a Non–Governmental Organization with expertise and experience in using judicial review to hold the government to account for breaches of the law ; it harboured no ulterior motive and had a genuine interest in promoting good public administration in government’s public procurement systems.
b.The gravity of the issues the Good Law Project’s challenge raised, concerning the UK Government’s public law obligations of impartiality, transparency, fairness and legality, justified the scrutiny of the court, and the grant of a public law remedy.
The court’s ruling, which leans decisively towards a liberal approach to the requirement to show a sufficient interest, is hugely significant: it means ordinary citizens, with no financial interest in a tender award, can hold public officials accountable in a court of law for breaches of public law principles of impartiality, fairness and transparency.
The Second Issue: Whether the Public First Contract was unlawful on the grounds that the circumstances in which it was awarded gave rise to apparent bias?
It is a principle of public law that a public officer must act without bias, impartially, and putting aside any personal prejudices.
Perceptions of actual or apparent bias are often at the centre of allegations of corruption in public procurement cases. Across the world, the common refrain is that public officers routinely award public contracts at grossly inflated prices to politically exposed persons, their friends, relatives, and surrogates. In his statement to the Court Dominic Cummings is candid about his personal and professional connections with James Frayne, Rachel Wolf and Gabriel Milland, the owners of Public First:
“I am friends with James Frayne, Rachel Wolf, and Gabriel Milland. I have not met James Frayne since 2016. I have previously worked with them in government and outside. For example, both James Frayne and Gabriel Milland worked at the Department for Education when I was Special Adviser at DFE (2011-2015). James Frayne and I worked on the Euro campaign 20 years ago,……. and set up the campaign to fight the proposed formation of a regional assembly in north-east England in 2004. I have talked to them extensively about focus groups and public opinion over many years.”
It has long been the practice of judges in England, when required to determine whether the conduct of a party to a dispute meets a relevant legal standard, to ask one of English Law’s hypothetical persons to make an independent assessment. In the Public First case, the court calls on public law’s fair-minded and informed observer, to determine the Good Law Project’s claim that Public First had been awarded a contract in circumstances which indicated a real possibility of bias.
Demonstrating confidence in the competence of the fair minded and informed observer, the Judge records her attributes, noting that she:
- is a person who reserves judgment until both sides of any argument are apparent;
- is not unduly sensitive or suspicious;
- does not act on the basis of first impressions or preconceptions but considers the evidence carefully, distinguishing between what is relevant and irrelevant, having particular regard to the specific factual circumstances; and
- takes a balanced approach and appreciates that context forms an important part of the material to be considered.
Justice O’ Farrell phrases her conclusion on the question of apparent bias in language clearly suggesting that the fair-minded and informed observer had a hand in it:
- The fair-minded and informed observer would have appreciated that research services on effective communication strategies in response to the Covid-19 crisis were required immediately, necessitating reliance on the emergency provisions in the procurement regulations;
- The fair-minded and informed observer would have appreciated that it was vital that the results and conclusions from the research were reliable, delivered with urgency, and that Dominic Cummings was uniquely placed, given his experience and expertise, to form a rapid view on which organisation might best be able to deliver those urgent requirements;
- The fair minded and informed observer would have appreciated that in the close knit and specialised field of public policy and communications research, it was not unlikely that those public officials involved in making procurement decisions would have developed professional and/or personal friendships over the years with colleagues in the private sector. Accordingly, the fair minded and informed observer would take the view, that in principle, Dominic Cummings’ professional and personal connections with Public First did not preclude him from making a lawful judgment as to whether Public First was suitable for appointment to carry out the research work needed;
- However, in the view of the fair minded and informed observer, the existence of personal connections between Dominic Cummings and the directors of Public First, was a relevant circumstance that might be perceived to compromise their impartiality and independence in the context of a public procurement. As such, it was incumbent on Cabinet Officers to ensure that there was a clear record of the objective criteria used to select Public First over other research agencies, so that they could allay any suspicion of favourable treatment based on personal or professional friendships;
- Under these circumstances, the 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. On this basis the court ruled that that award of the Contract to Public First was unlawful.
In January 2022 the Court of Appeal overturned Justice O’Farrell’s ruling on the apparent bias question; it found that, having regard to the emergency provisions permitting the direct award of contracts without going to tender, the fair-minded and informed observer would not have concluded that failure to consider other service providers, and demonstrate the use of objective criteria in the decision-making process, indicated apparent bias.
The Good Law Project noted an appeal to the UK Supreme Court, asserting that : “we believe there is proper and widespread public interest in the extent to which the law restrains public servants from awarding valuable public contracts to their friends without adequate safeguards to protect against the risk of bias.”
The Role of UK Citizens in Fighting Corruption through the Law – What Lessons for the Citizens of Africa?
Mrs Justice O’Farrell’s ruling that the Good Law Project had the right to challenge the legality of the Public First Contract is ground breaking : it was the first time that at the behest of a complete stranger, with no financial interest in public procurement, a court had granted a declaration of unlawfulness on the basis of apparent bias in respect of a decision by a public body to award a private law contract.
Equally significant is the court’s intimation that situations will arise, where public law officers charged with administering procurement contracts, are not, in principle, precluded from participating in a decision to award a contract to an entity with whose owners they have personal or professional connections, and that when they do so, public law imposes on them a duty to observe the principles of impartiality and transparency, and to demonstrate that the process was guided strictly by objective criteria.
Laying emphasis on high standards to be expected in the administration of public procurement, the court rules that time constraints created by the Covid crisis and the permitted departure from competitive tender procedures did not exonerate the UK Government from its public law obligation to conduct the procurement so as to demonstrate a fair and impartial process of selection.
Reading the judgments in the Good Law Project cases, we see how English judges, when required to make objective assessments in public procurement cases involving claims of apparent bias, eschew subjective tendencies by deferring, as a rule of practice, to the wisdom of the wider public, in the form of public law’s hypothetical person – the fair-minded and informed observer.
The practice of defining legal standards by reference to hypothetical persons can be traced to an intellectual tradition pioneered by Roman judges in 300BC.The fair-minded and informed observer, the officious bystander, and the man on the Clapham omnibus, are amongst a stellar cast of hypothetical persons of legal fiction that judges in England have developed overtime, and routinely turn to for assistance when applying legal standards in specific claims.
Innovative judges in Hong Kong have modified some of English law’s hypothetical characters by using names that local people can relate to; for example, they have created the Man on the Shaikuwan Train as the local equivalent of English law’s man on the Clapham omnibus.
From a Pan-Africanist perspective, it would not be out of place for judges in Africa, when defining legal standards of transparency and impartiality in public procurement cases, to use hypothetical equivalents of the fair-minded and informed observer, that resonate with local conditions, culture, and history.
The Good Law Project cases bring to light features of the UK’s public procurement legislation that are likely be of interest to policy makers in Africa, notably : a robust focus on transparency in procurement processes; the use of specific selection criteria to enable contracting authorities to demonstrate that the procurement process is fair and impartial; guidance on the circumstances in which a conflict of interest might arise or the circumstances that might give rise to apparent bias; and a requirement for contracting authorities to take appropriate and effective measures to prevent, identify, and remedy conflicts of interest that arise.
It is evident that the UK recognises the need to keep its public procurement legislation under constant review in order to respond to public concerns and new challenges. This bodes well for the Good Law Project’s mission.
Taking note of the shortcomings exposed in the Good Law Project cases, the UK Government undertook a comprehensive review of its procurement legislation. It put before Parliament a Procurement Bill that aimed to enhance transparency obligations in diverse areas and provide for greater scrutiny of the supply chain behind a bidder. The bill also introduced wider principles, such as the obligation to take social value and wider policy objectives into account- giving implicit recognition to the right of ordinary citizens to challenge procurement decisions on public interest grounds.
The transformative constitutions of several Commonwealth countries in Africa, adopted in the wake of the fall of the Soviet Union, create a legal environment that is ideal for citizens committed to using the law to fight for transparency, and demand good governance from those in positions of authority; these constitutions are the products of popular struggles and require a moral reading of the law- they proclaim the establishment of societies based on the values of equality, human dignity and freedom, and enjoin the State, its agencies, and the Courts, to promote the moral values and principles that underlie a democratic society.
Africa’s transformative constitutions place morality in the foreground of the judicial process; they oblige lawyers to articulate moral questions in cases where it is appropriate for them to do so; and they compel judges, when presiding in cases involving the legality of executive action, to engage in robust intellectual exchanges on the moral issues raised, to accurately record what those issues are, and in their judgments, to explain the reasons for the moral choices they make.
Moral values are deeply implicated in public procurement processes. If nothing else, by raising moral issues in public procurement cases and other challenges to executive action, lawyers can make certain that the moral promises of Africa’s transformative constitutions are kept alive in the legal system and in popular consciousness.
Covid 19 has edged us closer to the reality of an interconnected world, a brave new world in which our destinies are inextricably intertwined; a world in which citizens across nations will need to work together, and through shared experiences forge collective responses to climate change, recurring pandemics, corruption, and other pressing existential crises of our time.
The Good Law Project is non-partisan and relies wholly on crowdfunding by UK citizens. Through its work, UK Citizens, ordinary working men and women, in their tens of thousands, are making an important contribution to the global struggle against corruption, one of the greatest evils of our time.
James Devittie is a former Judge of the High Court of Zimbabwe. He writes here in his personal capacity.