A matter of status – UK Human Rights Blog


February 18, 2022 by Rosalind Français

The Good Law Project and The Runnymede Trust, R (at the request of) v Prime Minister and Anor [2022] EWHC 298 (admin) (February 15, 2022)

This was an interesting decision on the question of standing, something that has kind of fallen by the wayside since it was the subject of numerous satellite litigations in the 1990s. Essentially, the Court ruled that GLP lacked standing to bring this action. Notwithstanding its statutes, the objects of which include the provision of sound and fair administration, democracy, high standards in public administration, access to justice, preservation of the environment or “any other philanthropic or accessory volunteer”. Such a general statement of objects cannot confer standing on an organization:

This would mean that the GLP has standing to bring an action for judicial review in any matter of public law. [58]

Arguments before the Court

The GLP and the Runnymede Trust have challenged the government’s decision to appoint two people to lead Covid projects such as the Test and Trace program (Baroness Harding of Winscombe (Dido Harding) was one of those named). Mike Coupe, director of testing, NHS Test & Trace, was the other.

The plaintiffs argued that the government had a practice of appointing people to positions critical to the government’s response to the COVID-19 pandemic without an open competition, that only candidates with a relevant personal or political connection to the decision-maker were appointed. , and that although the positions to be filled were senior and of strategic importance, the appointee was not paid. The plaintiffs claimed that this resulted in indirect discrimination based on race and/or disability. They made other complaints about the process used by the defendants.

The defendants contested all of these claims on the merits. Further, they argued (a) that the issues in dispute had now been overtaken by events rendering the claims academic, and that for this reason the claims should not be decided by the court; (b) that the claims were made too late and should be dismissed for that reason; and (c) that the Claimants lacked standing to bring the claims. There was also another issue, which the Court considered in the context of the issue of standing, although conceptually distinct. The question was whether the contested decisions were subject to judicial review. Each of the decisions challenged in these proceedings was an employment decision. Employment decisions, even when made by public authorities, are generally not subject to judicial review.

The Court’s findings

Was the challenge academic?

The Court rejected this argument. This case was not one in which the passage of time or changing circumstances had rendered grounds for disqualification superfluous.

Delay

The defendant’s assertion of delay was not rejected in its entirety. Insofar as the claimants’ challenge concerned the legality of a policy, assuming such a policy existed, the challenge was brought in time. But the individual decisions about how each appointment should be made were not, however, ongoing acts. Each was a specific event that took place at a specific time.

Standing and possibility of judicial review

Often the issue of standing and the merits of the issues could not be separated (see HL in R v Inland Revenue Commissioners, ex p. National Federation of the Self-Employed and Small Businesses SA [1982] AC 617.)

The plaintiffs drew the court’s attention to the trend towards “liberalizing” the standard of standing in practice, and J acknowledged that in a number of cases courts have accepted that plaintiffs have standing act even if they were not directly affected by a decision: for example, pressure groups and even public-minded individuals have been recognized as having standing in appropriate cases. But what is remarkable is that, as the Claimants themselves say in their written submissions, such instances of judicial review have been brought by NGOs “in their areas of interest”. Many examples can be found, some of which are set forth by the plaintiffs: for example, R v Secretary of State for Foreign and Commonwealth Affairs, ex p. Global Movement for Development Ltd [1995] 1 WLR 386; R (Refugee Legal Centre) v Secretary of State for the Home Office [2004] EWCA Civil 1481; [2005] 1 WLR 2219; and R (Motherhood Plan) v HM Treasury [2021] EWCA Civil 1703.

The Court considered some of the thoughts on this theme by Lord Reed in Walton v Scottish Ministers [2012] UK SC 44, in points 89 et seq. At paragraph 92 of that judgment, Lord Reed said:

…a distinction must be drawn between the mere intruder and the person affected by or having a reasonable concern in the matter to which the request relates…. A trespasser is someone who interferes in something they have no legitimate concern about. The circumstances which justify the conclusion that a person is affected by, or reasonably concerned with, the matter to which a request relates, or is otherwise interfering in a matter which does not legitimately concern him, will clearly differ from one case to another, depending on the particular context and the reasons for the request.

Later in the judgment he said “not every member of the public can complain about every potential breach of duty by a public body”.

The quality criterion was discretionary and not “decided”. On the other hand, the question of standing fell within the jurisdiction of the tribunal and it was therefore not open to the parties to confer such jurisdiction by consent (R v Secretary of State for Social Services, ex p. Child Poverty Action Group [1990] 2 QB 540).

The Court did not consider that either claimant had standing to pursue the claims of indirect discrimination. This is not a case where all members of the public are equally affected.

The GLP is a private company limited by guarantee. Its statutes (approved at the end of 2021) define the objectives of the company (see above). This did not affect the Court’s finding that the GLP could not claim standing in this case.

No person, even sincerely interested in matters of public law, would be considered to have standing in all cases. We do not consider that the position differs simply because there is a public limited company carrying the request. Nor can it be right, as a matter of principle, that an organization can in the sense that an organization can in fact confer status on itself by drafting its objects clause so broadly that almost any conceivable error of public law made by a public authority comes under its jurisdiction. [57]

The Court therefore concluded that the Runnymede Trust, a charity which exists specifically to promote the cause of racial equality, had standing to challenge the two appointments which were made without complying with the sector’s equality duty public. But the Good Law Project did not.

As for the possibility of legal challenge, practical considerations point in the other direction. The labor court – where the relevant cause of action more appropriately existed – was much better placed than the administrative court to adjudicate disputes of fact that might affect the outcome of a discrimination claim. .

In any event, judicial review would generally not be allowed in circumstances where there is another adequate remedy.

The position of the Claimants with regard to the proceedings before the Administrative Court cannot be improved by the fact that they themselves could not have seized the Labor Court. On the contrary, it underscores the fundamental point that this aspect of the case is simply not subject to judicial review.[47]

decision

All of the claims failed, either because they were filed late, or because the contested decisions were not subject to judicial review, or because the claimants lacked standing, with the exception of the claims of public sector equality duty directed against the decisions to appoint Baroness Harding as acting president of the National Institute for Health Protection and Mike Coupe as director of testing at NHS Test & Trace. Both of these cases could be prosecuted, but only by the Runnymede Trust.

The court nevertheless examined the merits of the claims:

Indirect Discrimination: There was no evidence that the three appointment processes relied on were linked in any material way, to form part of a relevant pattern or practice.

Public Sector Duty: The application for a Public Sector Equality Duty resulted in the decision to appoint Coupe as Director of Testing for the NHSTT and the August 2020 decision that Baroness Harding should be Chairperson Acting NIHP.

Apparent bias: The principles of apparent bias did not apply to recruitment exercises.

The GLP request failed in its entirety. In relation to the Runnymede Trust, the court would grant a declaration that the Secretary of State failed to comply with the public sector equality duty in relation to the above appointment decisions.

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