Judicial review, Dominic Cummings and ‘Potemkin paper trails’ – and why courts require reasons for certain decisions

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.

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What does he mean?

And does he have a point?

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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.

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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. 

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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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13 thoughts on “Judicial review, Dominic Cummings and ‘Potemkin paper trails’ – and why courts require reasons for certain decisions”

  1. I’m not sure he meant that.

    He could have meant,

    “We have just, after a series of frenzies phone calls, shouts across corridors, and last-minute confirmations of facts, arrived at a clear decision we honestly think justified.

    We now need a totally unnecessary meeting, where all these points can be minuted, so as to leave an orderly paper trail.”

    1. You are very likely right – on the surface. But my experience, having lived in such environments, albeit in matters of less global import, is that such a situation is a perfect environment to make sure that the ‘right’ person/firm gets the contract without any checking of value for money, competitive options and so on.

      Also, the complaint is very disingenuous: even the busiest team in the Civil Service has clerks etc. who are perfectly capable of preparing a proper and legal justification for the choice made – if the choice is legal and justified. All toooften urgency is an excuse to cover illegal and unjustified actions.

    2. Well I really do hope its satire when you say Cummings could have meant
      “We have just, after a series of frenzies phone calls, shouts across corridors, and last-minute confirmations of facts, arrived at a clear decision we honestly think justified.”

      As the excellent work of the Good Law Project has been showing that frenzied activity was all about checking that the person or company to whom a large pile of taxpayer dosh was to be given was in fact on the VIP list and a Tory donor.
      As an example I’m in Belfast and as Good Law documented here we had 102 million pounds for a PPE contract given to the sweet and yogurt manufacturer Clandeboye, a company with precisely zero record of anything in the healthcare industry but owned by a wealthy and politically well connected family.

  2. It is very odd how his immediate suggestion for the way to defend against an appearance of bias is not to document the real reasons as you go along, but rather to create a “Potemkin” (i.e. sham) paper.

    Why? Would properly documenting the real reasons have provided evidence of actual bias?

    You don’t have to be a legal puritan to understand that process is important. Not the only or main aim, for sure, but important nonetheless.

    1. If Cummings were even a third of the polymath he so clearly believes himself to be, he would have been perfectly able to produce accurate, clear, and legally justifiable reasons for the decisions made.

      As it is, he continues to have very little actual defence for his actions.

  3. Cummings ​giving off a very strong “Six year old who’s learned a Grown-Up Word, and wants to impress all the adults by using it” energy, here.

    Although, pursuant to DAG’s point, I can very much imagine Dom thinking he could outsmart the combined mental might of the English & Welsh judiciary with a feeble paperwork smokescreen

    Also – Unless the point was covered elsewhere in the thread, there’s not even a hint of the idea that getting a contract for one of his friends was in any way unlawful or unethical.

  4. “I & the Cabinet Secretary repeatedly told officials ‘focus on imminent threats to lives/destruction, not process/lawyers/Potemkin paper trails”

    Or in other words, don’t look too closely at who’s getting all this money, because ‘I and the Cabinet Secretary’ have all that sewn up.

    When I joined a team funding infrastructure in former Eastern Bloc countries we were told, “Don’t worry too much about people diverting money into private bank accounts – it doesn’t actually happen that often. Worry about public procurement: that’s how the bad guys make their money.” And later, a consultant in Romania wrote an article describing his astonishment, as a junior engineer, to be given responsibility for EU projects. Only after a year or two did he realise that it was because projects funded bilaterally or via private funding were FAR easier to ‘pad’ to ensure a comfortable life for functionaries on both sides of the contract.

    Public procurement rules matter. They’re a pain in the butt for people who just ‘want to get things done’ but the absence of rules means that taxpayers will be paying over the odds to allow incompetent contractors, and their friends in public authorities, to rake in the money.

  5. Dominic Cummings is a geek. That’s no condemnation: only a lunkhead takes offence at the implication that they willingly invest focussed time on intellectual pursuits. But some geeks approach law with the belief that it’s a giant logic puzzle which can be solved, inputs can be found that inevitably yield a desired result, the judge swept aside by the tsunami of definitions. They can be found in the Hacker News comments, touting schemes whose only flaw is that they didn’t know how the game is refereed.

  6. Sure, Cummings may have made ready some sand for judges eyes but really did he have any need. Given the realpolitik and need for rapid decision making I doubt there would ever be any comeback on government ministers. Cummings was gathering up sand needlessly – for his own CYA.

    Contingency planning is always limited by cost. The UK had made itself vulnerable by running the NHS hot and narrow whilst the Germans for example had a wider more roomy system. All a matter of cost and taxation. Given the circumstances Covid was always going to hit the UK hard.

    Exactly what thought was given to turfing old people out of hospital we will probably never know. Plainly some hard decisions were made on a don’t tell anyone basis. This is where Cummings shows himself up as a junior prefect. Trying to cover his bottom when the big boys know their bottoms are covered anyway. Time for obscurity Dominic.

  7. “I & the Cabinet Secretary repeatedly told officials ‘focus on imminent threats to lives/destruction, not process/lawyers/Potemkin paper trails”

    Hmmm…Call me cynical, but I can only see those conversations going in the opposite direction: officials generally know what the real priorities are (it’s called “public service” for a reason), and – to the extent that it happens – it’s generally those in power who obsess about hiding or obfuscating what has led to their policy decisions…

    1. If a decision is well-reasoned, why fear giving the explanation? As DAG explained in a post a few days ago, in law, good-faith disagreement is entirely possible; the same is true in policy decisions.

      If I, for whatever reason, have to make a professional judgment call, I make sure I can back it up. Maybe my decision turns out to be suboptimal, or flat-out wrong, but at least I retain the ability to say “this was the situation at the time, this is why I did what I did, feel free to indicate what other choice you would have made, and explain why”

  8. With respect, courts should supply reasons for ALL decisions.

    Whether this in respect to high profile government/’society’ decisions or an individual, is immaterial.

    As a victim of several (very impacting) injustices (civil cases) out of UK courts, I find the scant, dismissive (and often disinterested) approach by many judges, with little or no regard for the pursuit of justice has lead to the inevitable conclusion that I now have no faith in the UK judiciary.

    As a self-representing litigant, I am familiar with the discrimination that courts have against such parties.

    The alternative is to pay for ‘one of their own’ to represent me. As, in my case, at an hourly rate of about 16x more than I earn (with no guarantee that they will act properly or competently, but gives the court the ‘get out’ clause that one had ‘professional’ representation), most ‘ordinary’ people can’t afford to correct the injustices against them, so give up. This is not a justice system for ‘the people’.

    It is however far worse than just a ‘perceived’ bias. (I have several examples that prove the ‘bias’ is a reality)

    Whilst I initially had faith in the UK court system, I now view it as unfit for purpose (by reference to my 15 year experience)

    I now see it as significantly populated by (with an odd exception) variously lazy, disinterested, incompetent and even corrupt judges (the latter seemingly due to improper (usually Masonic) associations of judges and opposing legal representatives.

    My assessment may be brutal, but it is factual and provable. But it matters not in a system littered with judges with such characteristics.

    The only avenue open to someone like myself is to keep looking to the courts to act in a just and decent way. After some 15 years, of opportunity for the courts to do this, it now feels a pointless exercise. (As Albert Einstein once said ‘Doing the same thing over and over again, and expecting a different result, is the definition of madness’ Mad, I’m not, but annoyed and very disillusioned, I most definitely am.)

    If I were to make public my experiences of the UK legal and judicial system, I’m sure there would be shock and disbelief, if not outrage, that decent people can be so abused by those alleged to uphold justice. (I may yet be forced to take such action, as a warning to others).

    This may seem as somewhat of a divergence from the original post.

    It is not.

    Proper accountability, and justified reasoning, by all judges, should come as standard.

    Such failure by the system, to establish and enforce this, leads to the improper experiences that I have been forced to endure. It is the ‘thin-edge of the wedge’

    Lack of proper accountability and proper (and honest!) reasoning by decision-makers, ultimately opens the door for corruption, for those so inclined (and they do exist!).

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