10th October 2022
The Good Law Project (GLP) has had yet another bad day in court.
Many are uncritical fans of the the GLP – I am not, but neither am I a committed opponent of it either.
But there is something in the recent defeat which I think should prompt wider discussion.
For not only did the GLP lose the case on the substance, it also lost outright on the question of “standing” – that is whether it was in the legal position to bring the case in the first place.
In essence: the GLP was not an “economic operator” adversely affected by the procurement decisions in question, and so it was not able to bring an application for judicial review.
If you read the court’s reasoning on this – from paragraph 498 onwards – you can see the judge’s points.
But.
The law of public procurement is distinct from the law relating to procurement generally because public authorities have to comply with certain public law principles when making decisions – principles with which a private entity making procurement decisions do not need to comply.
This is because those principles – such as transparency, equal treatment and so on – are for the public benefit, and not just the interests of the (potential) bidders.
And if these principles are to have teeth – that is, if they are to make a difference – then they need to be enforceable.
Else they are polite fictions.
An adversely affected competitor may perhaps have a private commercial interest in challenging a botched public procurement decision.
But that will be on private, selfish grounds – and not out of some sense of altruism.
So how are the unselfish public law principles to be enforced?
Given these principles are there to benefit the public generally, should it only be left to when the breach of principle overlaps with the private interests of a disappointed competitor?
One answer is to give bodies such as GLP standing to bring claims.
But the import of this judgment is that such a wide view is not valid.
And perhaps there are questions to be asked about self-appointed interest groups bring such strategic and tactical litigation.
But if not groups such as GLP, then who?
In the European Union there is an easy answer: the European Commission can bring proceedings for breaches of European Union procurement law.
But there is no such body in domestic law: there is not really a public procurement equivalent to the Office of Fair Trading.
Perhaps there should be.
But, with this decision on standing, it is not obvious what the “public” means in “public procurement”.
Yes, the GLP has many critics – and some of those criticisms are valid – but there is also something not quite right about a system of “public procurement” where the public law principles of transparency, equal treatment, and so on, can only be enforced if they happen to coincide with the private interests of a competing economic operator willing to assume litigation risk against a major customer.
(And few – if any – regular government suppliers want to litigate against their main customers, as it leaves a poor impression for the next tender.)
If the courts are going to take this strict view of standing, then the “public” element now needs to be built into the process some other way.
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I have no strong feelings about the GLP particularly. I do, however, think that it is no bad thing that there is an organisation, whatever its flaws may be, that at least attempts to hold to account bodies making decisions which are, or ought to be, susceptible to judicial review. As you point out here, if the GLP is denied standing, then who on earth will question a public procurement process which may have gone wrong procedurally? There are other areas too, I believe, where challenge can be needed, and it’s unclear to me who will make such challenge, absent the GLP, or similar. I recall, for example, that they were asking the Met to explain why Johnson only ever received a single FPN over Partygate, although there seemed to have been other gatherings he attended which were apparently not permitted by the regulations. Perhaps that’s been overtaken by subsequent political events, but the absence of any explanation, in a case where, I think, the public is entitled to have an interest, is unsatisfactory, in my opinion. It seems to me that there far too many dimly lit, or unlit, areas in our ramshackle unwritten constitution and in the operational activities of public bodies like the police, and nobody, really, to shine an illuminating light, more often than not, other than the likes of the GLP.
Is this an issue where a higher court may feel able to take a broader approach to standing, for the reasons you give? Feels a bit like prorogation, where the English lower courts mostly took a precedent based approach but the SC felt able to look at the effect.
Couldn’t the Competition and Markets Authority have taken this on if it thought that there had been abuse in procurement that adversely affected competitors and ultimately consumers?
To be honest, so much with central government relies on people – well, organisations probably – being unwilling to risk taking on the fight because of the potential backlash or retribution.
This adds to the concerns about leaving the EU – often, it did seem able to keep the Government in check (or the threat of it kept the Government in check).
Although not a huge fan of GLP, when it picks the right issues it does seem to shed light – even if it doesn’t win.
In Scottish local authorities, the controller of audit may make a report to the Accounts Commission if they believe that the local authority has acted illegally.
So in a hypothetical irregular piece of public procurement, there is a body that can initiate specified proceedings.
Not as strong as a challenge by an unsuccessful economic operator, but not nothing.
Section 102 onwards of the Local Government (Scotland) Act 1973.
And of course auditors of Central government bodies are required to express an opinion on the regularity of expenditure. Whether dodgy public procurement renders expenditure irregular I don’t know, nor the appetite for auditors to investigate this.
The National Audit Office for England and Wales has qualified the accounts of the public body in question for dubious procurement exercises in the past for misuse of public money. But they can only ever look at a smallish sample of the procurements that have been undertaken…..
Important questions raised. As a career long public servant, it has always felt that there is a difficult balance to strike in terms of accountability alongside responsibility. Whilst it can often be irksome to be transparent, I would always prefer that to unmitigated risks of opaque procedures and unaccountability, which I think is also relevant to the debate about the value of regulation versus freedom to act as the individual/organisation sees fit.
For the record, I have long thought that the English law on standing in judicial review cases is unusually broad. Famously, under EU law you have to be directly and individually concerned to bring an action for annulment (Plaumann), and the other two legal orders that I know most about – Dutch and US – likewise typically require some kind of individualised damage that sets the claimant apart from the public at large. (Art. 8:1 Awb and Lujan v. Defenders of Wildlife, respectively.)
Ironically, in the UK the generous standing rule goes back at least as far as the case that Rees-Mogg senior brought against the Maastricht Treaty, which he would never have been able to bring in any of the other jurisdictions I mentioned.
As you say, it is generally good if public authorities are held to account in court to make sure they obey the law. On the other hand, letting anyone who pleases sue the government for anything they like isn’t great either. My sense is that different jurisdictions have tried to strike a balance.
In the US a variety of non-monetary damage is often enough to establish standing (although “taxpayer standing” is still very much discouraged).
In the Netherlands art. 3:305a of the Civil Code now allows foundations to bring lawsuits to promote the interests of a class of persons, insofar this is consistent with their statutes and insofar as there is sufficient guarantee that the interests in question will be safeguarded by the foundation.
So my sense is that it wouldn’t be the end of the world if the law of standing in England and Wales were reined in a bit. (Emphasis on the “a bit”.) This is a difficult balance to strike.
At a time when the executive is increasingly testing not just its constitutional powers but also seeking to operate outside the law, who exactly can hold them to account? If the GLP does not have standing, which I get, who does? What adjustments are the courts taking to counter the power grab by government? One feels the courts are being too slow to recognise the chewing up of the constitutional settlement. Is that not why the GLP feels compelled to intervene?
From a policy viewpoint a possible compromise would be to accept that industry/professional bodies have standing. That would avoid the need for a particular firm or firms to risk upsetting the procuring authority while excluding those (such as the GLP) who claim standing in whatever takes their fancy.
I do not know how such bodies would achieve standing but a cock-shy argument might be that failings in public procurement will be to the detriment of their members collectively, and so tend to diminish the resources available to the reprersentaive body to act in their interests.
In passing I note that none of the bodies* for the British biotech sector joined the GLP’s litigation.
*https://www.gov.uk/government/publications/uk-life-sciences-support/uk-life-sciences-membership-associations
I’m no expert on procurement law (thank heavens) but every official in the EU with contracting responsibility had to undergo training in the basics of public procurement. One thing we were taught was that EU law was essentially a transposition of WTO legislation – to which the UK is also subject (at the moment at least).
In principle, it would seem, every taxpayer should have standing since it is her or his money that is potentially being wasted by improper procurement. I have not read the reasoning in the case but IF it is saying that only directly affected actors – essentially competitors – have standing then this makes the legislation very weak for the reasons you mention (although it could be the case that knowledge that one actor in the market is trigger-happy in the legal sense might make the contract adjudicator more cautious).
But more important than wasting money, it is really important that public markets are seen to be open and fair or the way is open to more nefarious ways of demonstrating the value of a particular bid.
I admit that I do respect the GLP (Good Law Project) although it does, at the same time, trouble me that we have a group that puts itself in the position of deciding what issues merit being challenged through the legal system and which ones do not. Despite the good intentions, the challenges they will undertake will necessarily reflect a certain bias – so it is not necessarily completely impartial.
Having said this, it brings to the centre stage a number of issues that would otherwise potentially not be addressed, never mind exposed. In addition, the courts are more than capable to impose themselves when there may be cases of overreach by the GLP.
At the same time, as this case illustrates, by the mere fact of issuing legal challenges, they can highlight potential weaknesses/flaws in the legal system, such as the ability of someone who perceives a flaw in public actions, and has the means to challenge these, to attempt to redress such a failure, regardless of pecuniary interest (and there is an argument that we all have a pecuniary interest in public actions to be impartial). Without the actions of the GLP, this issue would not likely have come under public scrutiny, so even by their failure, they have still rendered a public service.
We are in a ‘how not to do something’ situation: what we have witnessed is the definitive example of how not to do something, and we need to discover for ourselves what is the best way, if we set out to do something, to *do* something
…this, unfortunately, is now precisely the kind of country which needs EU oversight, though perhaps this will change at the next GE
Para525 of the judgement relates to the position of the claimant.
Has or could the GLP find itself being viewed as a “busybody” ?
As usual spot on, we need a change of Government before this shower of vested interests can be brought to heel, it is readily apparent from this ruling that there is no ‘Public’ in Public Procurement.
BUT
Why shouldn’t I, as a taxpayer, who, in the end one way or another, pays for all of this, bring a case of impropriety, well, at least failure to follow well laid down rules, in the interests of this and all other taxpayers?
I think this problem is that the GLP are now the wrong claimants to bring these sort of claims. Judges are people too and it appears to me that they have burnt any goodwill that the Court’s had towards them
As shown by paragraphs 541 to 543 of the Judgment:
https://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWHC/TCC/2022/2468.html&query=(good)+AND+(law)+AND+(project)
However, the matter does not end there because a set of further points is made by Ms Abbott in her WS. First, she says that the public procurement regime serves important public interests. I agree, but that in and of itself does not confer standing on GLP as opposed to a relevant economic operator. Second, she points to the fact that GLP has brought a number of claims in connection with the government’s Covid-related spending. It has been able to do so because of the substantial amounts of money provided to it by crowd-funding and particular donors. I accept that this does at least show a particular interest in such matters which GLP has been keen to pursue. I also agree that by dint of this litigation experience, GLP might be said to have acquired particular insights into what may be described broadly as procurement-related claims. But such points only go so far where GLP has not itself been directly affected and where there is no surrogate or associational claim. Further, at least in this case, the significance of the Contracts was much attenuated by external circumstances in the end, namely the failure to answer the Immunity Question in the affirmative. Moreover, GLP’s recent Covid-related claims failed entirely (ultimately) in Public First, almost all of them failed in PPE and in any event no declaratory relief was given in the latter, and the claims before me have failed. Accordingly, in this case, I think that only very limited weight can be attached to GLP’s “experience and expertise” notwithstanding the relevance attributed to that factor on standing in Unpublished Contracts, Public First and PPE.
542.
GLP further argues that even if not affected by DHSC’s alleged unlawful conduct, it had “reasonable concerns” which should result in standing. It was not a mere busybody. Again, “governance” is relied on here which is very broad, as is the aim of “upholding democracy”. Ms Abbott also refers to issues of unfairness and discrimination which have consequences for the general public. Indeed they do, but standing based on such general points as this flies in the face of Runnymede. She also refers to GLP’s sincere interest in securing the accountability of government. I am sure that it has such an interest but again, without more, this is hardly sufficient to confer standing.
543.
A further point is that GLP has produced content for newspapers. However, but much of this seems to have been generated in order to support its legal challenges. Mr Maugham himself has said that GLP exists to bring and support public interest litigation.
The individual tax-payer has seen a portion of the tax she or he has paid being mis-spent on, for example, defective PPE which had to be junked. The consequent inability to deploy the good PPE which should have been acquired must surely have led — provably — to avoidable deaths. If simple bereavement which was a consequence of malpractice doesn’t give “standing” to the bereaved, how about the financial consequences to the individual of the bereavement itself?
OFT was a non-ministerial department. It existed from 1973 to 1 April 2014. OFT’s responsibilities passed to a number of different organisations when it closed.
We might recall the flak that Mr Branson was subject to when he sued the NHS over their procurement…