IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

THE QUEEN
on the application of
MIGRANT WORKERS DEFENCE GROUP
CLAIMANT
V
THE MINISTER FOR THE CABINET OFFICE
DEFENDANT

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Summary Grounds Section C

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Introduction

1. The Migrant Workers Defence Group (MWDG) brings this application for judicial review of
the guidance, relating to the procurement of Personal Protective Equipment (PPE) and
modern slavery, issued by the Cabinet Office in Action Note PPN 02/21 in March 2021.

2. The MWDG lists 7 grounds of resistance:

(i) Ground 1: Illegality: failure to adhere to section 54 of the MSA
(ii) Ground 2: Illegality: failure to comply with international treaties obligations
(iii) Ground 3: Illegality: Legitimate expectations
(iv) Ground 4: Irrationality: Equal treatment and transparency
(v) Ground 5: Irrationality: Failure to follow own policy
(vi) Ground 6: Irrationality: Length of policy
(vii) Ground 7: Proportionality: breach of Article 4 ECHR

3. The Minister for the Cabinet Office (herein, Minister) resists all grounds for the reasons that
will be set out below.

Factual Background

4. The Minister wishes to add the following to the MWDG’s factual background.

5. The COVID-19 pandemic took hold here in the UK in early March 2021 which required drastic
action in order to prevent shortages of PPE and other essential supplies. This necessitated
the use of regulation 32(2)(c) of the PCR 2015.

6. The UK is still tackling the COVID-19 pandemic and thus has a continuing need for PPE. A
common issue that was reported to the Cabinet Office (CO) was the absence that bidders for
PPE contracts could not comply with their obligations under the Modern Slavery Statement

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 (MSS) as they lacked visibility of their supply chain due to the unique difficulties the COVID-
19 pandemic posed.

7. A VIP list was created of providers who the government had personal and professional
contact with and therefore were less likely to be using slave labour within their supply chain.

8. The Action Note PPN 02/21 issued in March 2021 sort to deal with a novel situation and
protect the lives of the UK’s health and care sector workers as well as the general
population.

Grounds of Resistance

Ground 1

9. First, the Action Note PPN 02/21 issued by the CO does not interfere with section 54 of the
MSA 2015. It is trite law that ministers of the Crown cannot issue guidance or policy that
specifically overrules an Act of Parliament, and indeed this is not what the Action Note seeks
to do.

10. Second, the Action Note merely provides that non-adherence to section 54 of the MSA is not
an automatic ground for refusing a bidder for a public PPE contract. This is supported by the
‘Tackling Modern Slavery in Government Supply Chains’ guide for commercial and
procurement professionals which states that failure to adhere to section 54 is a
‘discretionary exclusion’ ground and not a ‘mandatory exclusion’ ground (p10).

Ground 2

11. First, neither of the ILO Conventions listed by MWDG require that an MSS is provided by a
commercial entity who wishes to bid for a public contract.

12. Second, the Action Note PPN 05/19 issued September 2019 states that In-Scope
Organisations must use the guidance ‘Tackling Modern Slavery in Government Supply
Chains’ and that front line staff must receive awareness on how to identify modern slavery.
These polices are still in force and therefore all PPE contracts are still analysed for the
potential for modern slavery in their supply chains. The only difference is that no formal MSS
is required. This means that modern slavery due diligence is carried out before a contract is
awarded.

Ground 3

13. First, there is no dispute that tackling modern slavery is a government policy. However, the
government policy is more broadly defined as tackling modern slavery and is not solely
confined to the introduction of section 54 of the MSA 2015. As stated in paragraph 12,
modern slavery due diligence in line with Action Note PPN 05/19 is still carried out before
contracts are given to bidders. Therefore, the government can prevent slave labour being
used in their supply chains without the need for an MSS, especially during the extraordinary
challenges the COVID-19 pandemic poses.

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Ground 4

14. First, the Minister disputes that the VIP fast lane does not offer protection against modern
slavery being present in supply chains. The commercial organisations on the VIP list are all
reputable companies with high standard throughout their supply chains. This means that the
Minister can be confident that those firms awarded contracts are less likely to have issues
with modern slavery compared to unknown commercial organisations.

15. Second, the Minister disputes that the VIP lane policy is ‘arbitrary’. Instead, these companies
ae personally and/or professionally known to certain members of government or civil
servants. These contacts are often formed through official governmental work, increasing
the confidence the government can have in these commercial organisation.

16. Third, the novel nature of the COVID-19 pandemic meant that the government needed a
way to dynamically award contracts to prevent the loss of life. The VIP lane seeks to do this,
whilst also allowing the government to be confident that slave labour is not present within
their supply chains.

Ground 5

17. First, the government continues to be committed to eradicating modern slavery within
government supply chains. This temporary policy in Action Note PPN 02/21 is designed to do
this whilst reacting to a novel pandemic. The MWDG fails to appreciate the true nature of
the policy as it required evidence to be provided before the waiver took effect. This meant
that the government was confident that all waivers given were for legitimate reasons.

18. Second, the MWDG fails to appreciate that government policy is constantly evolving and
therefore the issuing if the Action Note PPN 02/21 marks evolution rather than
direct contradiction to the previous policy aims of the government.

19. Third, taking paragraph 17 and 18 together it cannot be said that no reasonable person in
the Minister’s position would not have taken this action.

Ground 6

20. First, the policy’s end date is not 31 December 2021 per se, instead the end dates given
(March 31, June 30, September 30 or December 31) represent the different accounting, tax
years or business years that a commercial organisation may use. For example, a commercial
organisation may publish their MSS every March and therefore if they have not been able to
publish an MSS since March 2020, the policy provides for this eventuality.

21. Second, the policy will be reviewed every 6 months and will end as soon as is practicably
possible.

22. Third, it must be stated that the policy only applies to PPE contracts where commercial
organisations have issues with supply chain visibility, therefore if a commercial organisation
cannot prove such issues, as the world returns to pre-pandemic levels of openness and
visibility, they will not be able to avail themselves of the policy.

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Ground 7

23. First, Article 4 of the ECHR does not require any specific protections against modern slavery
in government supply chains. The penal sanctions put in place by the MSA 2015 satisfy the
positive obligations imposed by Article 4 of the ECHR.

24. Second, the safeguards built into the policy means that the Minister and government cannot
be said to be facilitating the use of forced labour in supply chains.

25. Third, the policy response to the novel COVID-19 pandemic is proportionate to the
legitimate aim (protection of public health) that was pursed by the Minister.

Standing and Remedy

26. This claim is in substance a procurement challenge. Despite this, no challenge has been
made by an economic operator. It is clear that MWDG is not such an operator. Therefore,
the Court should be wary about allowing an ordinary judicial review when no challenge has
been made under the relevant legislation by a directly affected party. Under PCR 2015 Part 3
there is a clear scheme of remedies for any breaches to the 2015 regulations and within Part
3 it specifies who is able to bring a challenge under that regime. For avoidance of doubt, the
MWDG is no such a person and does not have standing to bring a judicial review claim that it
would not otherwise have under the 2015 Regulations themselves.
27. If the Court does not accept this argument, it is still true that the MWDG lacks the necessary
direct interest. MWDG is nothing more than an activist ground with no special interest in
procurement. Furthermore, no other directly affected group has sought to challenge the
guidance issued by the Minister and thus MWDG should not be permitted to intervene
either should another party come forward.

Conclusion

28. In the circumstances, the Minister submits that the application should be dismissed and
intends to seek his costs in this case.

DANIEL JUKES