If you have nothing to hide you have nothing to fear: Why the Government is afraid of Judicial Review

Judicial Review proceedings brought by the Good Law Project are uncovering the process by which Public First, with its longstanding links to Dominic Cummings and Michael Gove, was awarded a £564,000 public contract. The key point to remember (and what is concerning the Government) is not whether Public First was the strongest applicant, it is whether the process by which the contract was awarded was unbiased and transparent. The issue here is scrutiny, not selection. 

The problem for the Government is that this will not be the last public interrogation of the processes that it has adopted in awarding millions of pounds of public contracts during the pandemic, or arising from the economic restructuring following Brexit. This unique combination of circumstances has facilitated a huge amount of change with a disproportionate lack of scrutiny, politically, legally and commercially. Expediency and necessity have been the justifications. But as things slowly start to return to normal, increasingly, both the public and businesses in the areas of the economy most affected will want reassurance that those that have benefitted (and those that have suffered) have done so as a result of a fair and transparent process. Judicial Review is the process of obtaining either reassurance or redress.   

Unless, of course, the Government is able to dramatically reduce the scope and availability of Judicial Review. To do that, it would need to: 

• launch an Independent Review of Administrative Law; 
• respond to the call for evidence making proposals limiting its scope (in line with its 2019 manifesto pledge to ensure "that it is not abused to conduct politics by another means or to create needless delays."); and
• refuse Freedom of Information Act requests to publish the departmental responses to the call for evidence so that the public and business can understand the Government's motives and objectives.   

All of which it has done. 

Since its loss in the high-profile Supreme Court prorogation proceedings in 2019, the Government has been determined to limit its exposure to scrutiny, especially by the Courts. These proceedings highlight why. If the process was clear and transparent then the Government will be successful in defending the proceedings. But there must be real concerns about the process in circumstances where the existence of the "VIP Lane" for those tendering for public contracts only came to light as a result of leaked Government papers. The extent of the Government's concern is also borne out by the £600,000 in legal fees that it has incurred defending the challenge. 

This is why the results of the Independent Review of Administrative Law matter. The impact of reform to Judicial Review reaches far more widely, and is about far more than litigating politics. It is about protecting business confidence in public contracting, providing a stable platform for an economic recovery, and about ensuring the rights of individuals to fair, open and honest treatment by their public institutions.