11th June 2021
In three tweets in a thread posted this week, Dominic Cummings, the former assistant to the prime minister, refers to ‘Potemkin’ paper trails and meetings.
72/ JR summary: ‘there is no suggestion of actual bias’ but instead of telling officials to focus on the worst crisis since 45, a disease x2 in 2-3 days, I shd have told officials to focus on creating a Potemkin paper trail to negate campaigners claiming ‘appearance’ of bias— Dominic Cummings (@Dominic2306) June 9, 2021
74/ On this basis the courts shd rule that many 2020 decisions were similarly ‘unlawful’ as I & the Cabinet Secretary repeatedly told officials ‘focus on imminent threats to lives/destruction, not process/lawyers/Potemkin paper trails’— Dominic Cummings (@Dominic2306) June 9, 2021
76/ Officials often tell PM 'we need a Potemkin meeting repeating what we've just decided for a paper trail in case of a JR'. Ditto across Whitehall many times a day. I've said for yrs this causes chaos, today guarantees the problem gets more destructive— Dominic Cummings (@Dominic2306) June 9, 2021
What does he mean?
And does he have a point?
What he is alluding to, of course, are the ‘Potemkin’ villages, where things in bad conditions were dressed up to be in good conditions so as to mislead others.
In the context of judicial review, Cummings presumably does not mean that bad reasons would be dressed up as good reasons.
What he instead intends to mean is that there could be artificial reasons and contrived meetings the purpose of which was to make a decision judge-proof.
To a certain extent, he has a point.
In the judicial review case in question, had there been evidence of officials conducting any form of evaluation exercise then the tender award may have been harder to attack legally.
And such an exercise could, in reality, have been nothing other than going through the motions rather than anything that could have actually led to another agency actually getting this valuable contract.
But this is not the reason the courts require reasons for certain decisions – and it may not have changed the judgment in this case either.
Judges and courts are not stupid and naive.
Judges and courts know full well reasons can be artificial and contrived.
The judges were once barristers and solicitors and, as such, they would have had considerable experience of advising clients on providing reasons for certain decisions.
The purpose of requiring reasons for decisions – and for ministers and officials to say they are true reasons – is to make it more difficult for bad and false decisions to be made.
For example – take the decision by the government to seek a prorogation of parliament in 2019.
No minister or official – or adviser – was willing to sign a witness statement (under pain of perjury) as to the true reason for advising the Queen to prorogue parliament.
And without such a sworn (or affirmed) reason, the government lost the case.
Reasons also provide a reviewing court with a basis of assessing whether a decision was so unreasonable that no reasonable decision could have made it, and also of assessing whether relevant considerations had been included and irrelevant considerations were excluded.
Providing reasons does not provide an escape route for cynical and irrelevant and unreasonable decision-making.
But it is an impediment, and one that makes it harder for ministers and officials to get away with bad decision-making.
And in the recent judicial review, it is not clear to me (as a former central government procurement lawyer) that even an artificial ‘Potemkin’ exercise would have necessarily saved the decision from legal attack.
Awarding a high-value contract to cronies where a nominal (though documented) exercise of discretion had not shown any actual objective advantage over other possible suppliers would still have been open to legal attack.
So this is not necessarily a case where the failure to provide a ‘Potemkin’ paper trail is to blame for the loss of a legal case.
The pram may well have fallen down the stairs anyway.
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