High Court considers judicial review of public sector appointments made during the pandemic

In R (Good Law Project and Runnymede Trust) v Prime Minister and Secretary of State for Health & Social Care [2022] EWHC 298 (Admin) the High Court granted a declaration that the Secretary of State for Health and Social Care did not comply with the public sector equality duty ("PSED") in relation to the decisions to appoint particular individuals to senior public sector positions as part of the government's response to the Covid-19 pandemic.

Key points

• Judicial review is ordinarily not the appropriate forum to challenge employment decisions taken by public authorities.
• When making appointments, public authorities must evidence the actions they have taken to discharge the obligations imposed by the PSED.
• While there has been a general trend towards liberalisation of the rules on standing, the courts will nevertheless consider the position carefully and dismiss grounds of challenge where there is no "sufficient interest".

Background

The judicial review claim, brought by not-for-profit campaign organisation The Good Law Project and race equality think tank The Runnymede Trust (the "Claimants"), concerned a series of appointments to leading healthcare positions during the early stages of the Covid-19 pandemic. Specifically, the appointment of Baroness Harding in May 2020 as Chair of NHS Test and Trace ("NHSTT") and subsequently as Interim Chair of the National Institute for Health Protection in August 2020, and the appointment of Mike Coupe as Director of Testing at NHSTT were all challenged by the Claimants (the "Appointments").

The Claimants contented that the Appointments were symptomatic of a government policy of recruitment to critical positions without open competition which had resulted in instances of indirect discrimination.

Judicial review was sought on three grounds:

1. For indirect discrimination, pursuant to sections 29 and 50 of the Equality Act 2010, on the basis that the government had adopted an unlawful and discriminatory appointment policy ("Ground One").
2. For breach of the PSED under section 149 of the Equality Act 2010, which imposes an obligation to have regard to the need to advance equality of opportunities and to eliminate discrimination ("Ground Two").
3. For breach of procedural fairness and apparent bias based on the fact that Baroness Harding was involved in the final stages of the appointment of Mike Coupe, despite there being a historic working relationship between the two appointees ("Ground Three").

The Defendants opposed all three grounds on their merits and for a number of procedural reasons, including on the basis that the Claimants lacked standing to bring the claims. The Defendants also argued that the decisions challenged were not amenable to judicial review.

Standing and amenability

The judgment contains a detailed summary of the law of standing and its application to NGOs. The key question, which is set out in section 31(3) of the Senior Courts Act 1981, is whether the particular claimant has a "sufficient interest in the matter to which the application relates". Where a number of different grounds of challenge are being advanced, it is possible that particular claimants could have standing for some grounds but not others.

The judgment also contains an examination of how the principle of amenability – which is whether a decision is a public law decision which can be challenged by way of judicial review – applies in an employment context.

Ground One

The Court held that neither of the Claimants had standing to pursue the indirect discrimination claims. The Court's conclusion on this point was closely bound up with its consideration of amenability. In particular, the Court emphasised that "The Employment Tribunal – where the relevant cause of action more appropriately exists – is far better suited than the Administrative Court to adjudicate on disputes of fact likely to be material to the outcome of any discrimination claim". Such claims in the Employment Tribunal could not be advanced by the Claimants but could have been brought by specific individuals, namely the other candidates considered for the Appointments. Notwithstanding that no such individual complainants had come forward, the Claimants did not have standing to bring this ground of challenge.

Ground Two

In relation to the alleged breach of the PSED, the Court confirmed that judicial review is the appropriate forum to bring such a claim. While the Court concluded that the Runnymede Trust, as an organisation promoting racial equality, had standing to do so, it found that The Good Law Project did not have standing due to the organisation's broad remit. Emphasising that "No individual, even one with a sincere interest in public law issues, would be regarded as having standing in all cases", the Court found that "it cannot be supposed that the GLP now has carte blanche to bring any claim for judicial review no matter what the issues".

Ground Three

The Court reiterated that the Employment Tribunal remains the appropriate place for this type of claim and that, consequently, Ground Three was not amenable to judicial review and that neither of the Claimants had standing.

The merits

Ultimately the only ground which the Court permitted to proceed concerned compliance with the PSED.

Emphasising that the PSED is "a duty of process, not of outcome", the Court held that no evidence had been provided by the Defendants to confirm what actions were undertaken to comply with this duty, finding that the evidence presented "goes no further than generalities". Ground Two therefore succeeded in respect of the decisions to appoint Baroness Harding as Interim Chair of NHSTT and Mike Coupe as Director of Testing and the Court granted a declaration accordingly.

While there was no formal need for the Court to consider the merits of the other grounds, the judgment does contain a useful discussion of apparent bias. In addition to finding that the claim failed on the facts (as the fair minded observer would not conclude that there was a real possibility of bias), the Court emphasised that "the principles of apparent bias have no application to employment recruitment exercises".

Comment

The Court's judgment is notable when set against the backdrop of the various, recent challenges that have been made to the government's activities during the Covid-19 pandemic. Many of these challenges have been widely publicised and several have involved NGOs with no private interest in the relevant decisions.

A key point of interest here is standing. Whilst acknowledging that, since the House of Lords decision in R v Inland Revenue Commissioners, ex p. National Federation of Self-Employed and Small Business Ltd [1982] AC 617, there has been an increased ""liberalisation" of the test for standing", it is notable that the Court denied The Good Law Project standing on all grounds, having not been persuaded that the broad remit in the organisation's objects was determinative. It remains to be seen whether this decision will reflect a trend towards tightening the law on standing.

Additionally, the dismissal of Grounds One and Three illustrates the difficulties faced by claimants when seeking to persuade the Court that claims for judicial review in the employment context should progress, given the position of the Employment Tribunal as the specialised forum to hear such claims.