Good Law Project Ltd v The Prime Minister
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Mr Justice Swift |
| Judgment Date | 15 February 2022 |
| Neutral Citation | [2022] EWHC 298 (Admin) |
| Docket Number | Case No: CO/4240/2020 |
| Court | Queen's Bench Division (Administrative Court) |
The Queen (on the application of
[2022] EWHC 298 (Admin)
Lord Justice Singh
Mr Justice Swift
Case No: CO/4240/2020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Jason Coppel QC and Hannah Slarks (instructed by Rook Irwin Sweeney) for the Claimants
Sir James Eadie QC, Julian Milford QC, Julian Blake and Jason Pobjoy (instructed by the Treasury Solicitor) for the Defendants
Hearing dates: 14 and 15 December 2021
Approved Judgment
A. Introduction
The Claimants contend that the government has a policy or practice by which people have been appointed to positions critical to the government's response to the COVID-19 pandemic without open competition, that only candidates with some relevant personal or political connection to the decision-maker are appointed, and that, even though the positions to be filled are senior and strategically important, the person appointed must be unpaid. The Claimants say this gives rise to indirect discrimination on grounds of race and/or disability and make other complaints about the process used by the Defendants.
The Claimants' claim was issued in November 2020. As originally pleaded, the claim identified four appointment decisions as evidence of the policy or practices claimed to exist: first, the decision in May 2020 to appoint Baroness Harding of Winscombe (Dido Harding) as Chair of the Test and Trace Task Force (later known as NHS Test and Trace); second the decision (also in May 2020) to appoint Kate Bingham to lead the Vaccines Task Force; third, the decision in August 2020 to appoint Baroness Harding to be the Interim Chair of the National Institute for Health Protection; and fourth the decision in September 2020 to appoint Mike Coupe to be director of testing at NHS Test and Trace.
The Claimants' discrimination claim, put on the basis of both sections 29 and 50 of the Equality Act 2010 (“the Act”), is that the policy or practice they allege to exist is unlawful, and also that each decision to appoint was unlawful because the decision to appoint was made in exercise of the discriminatory policy or practice. By an Amended Statement of Facts and Grounds dated 4 October 2021, the Claimants withdrew any reliance on the decision to appoint Ms Bingham, either for the purpose of establishing the policy or practices relied on or for the purpose of asserting that the decision to appoint her was, on its own terms, unlawful.
The Claimants also contend that the policy or practice they assert was adopted in breach of section 149 of the Act (“the public sector equality duty”) – i.e. the obligation, in the exercise of public functions, to have due regard amongst other matters to the need to eliminate discrimination and to advance equality of opportunities, and that the decisions in each instance on the method of appointment to be used were also taken without compliance with the public sector equality duty.
Lastly, the Claimants contend that the decision to appoint Mr Coupe was unlawful because it was taken in breach of the rules of procedural fairness. Baroness Harding was involved in the appointment process and was one of three people involved in the final decision to appoint Mr Coupe; between 2008 and 2010 she had been an executive director of J Sainsbury plc; between 2004 and May 2020 Mr Coupe also worked at J Sainsbury plc, including as Chief Executive of the company. The Claimants' submission is that these circumstances invalidated the decision to appoint Mr Coupe on the ground of apparent bias.
The Defendants dispute all these claims on their merits. In addition, they contend (a) that the matters complained of have now been overtaken by events rendering the claims academic, and that for that reason, the claims should not be determined by the court; (b) that the claims have been brought too late and should be dismissed for that reason; and (c) that the Claimants lack standing to bring the claims. There is also one further matter, which we consider below in the context of the standing issue, although it is conceptually distinct. That is whether the decisions challenged are amenable to judicial review. Each of the decisions challenged in these proceedings is an employment decision. Employment decisions, even when taken by public authorities, are not ordinarily challengeable by application for judicial review unless the decision challenged is one of general application: see McClaren v Home Office [1990] ICR 824 per Woolf LJ at page 837B-D, and R v London Borough Hammersmith and Fulham, ex p. NALGO [1991] IRLR 249 per Nolan LJ at paragraphs 25–28.
B. Is the challenge academic?
The first preliminary point is that because each of the appointments challenged has now come to an end, the claim has become academic and should not be determined by the court.
We reject this submission. The present case is not one in which either passage of time or changing circumstances have rendered the grounds of challenge redundant. The position would be different if, for example, the response to the claim had been that the practices alleged by the Claimants had existed but had now been abandoned. But that is not this case. The Claimants' challenge to the legality of the Defendants' conduct should be determined on its merits. The challenge does not depend on any hypothetical matter. Were the Claimants to be correct in their assertion that the policy or practices relied on exist, or were they to succeed on the ground that there was a breach of the public sector equality duty, adjudication on the legal merits would serve a practical purpose and were the claim to succeed it is possible that declaratory relief might be granted.
C. Delay
The Defendants contend that any challenge to the specific decision in May 2020 to appoint Baroness Harding to NHS Test and Trace (NHSTT), whether a claim of indirect discrimination or a claim that the decision was in breach of the public sector equality duty, is out of time. They also submit that any challenge to the decision announced on 18 August 2020 to appoint Baroness Harding as Interim Executive Chair of the National Institute for Health Protection (NIHP) was not commenced promptly. The Defendants further submit that the public sector equality duty challenge was commenced out of time. The Defendants do not take any point on delay so far as concerns the challenge to Mr Coupe's appointment as Director of Testing at NHSTT in September 2020.
The Claim Form was filed on 17 November 2020. The obligation is to commence any claim promptly, and in any event within 3 months of the date of the decision challenged: see CPR 54.5(1). Prima facie, the challenge to the May 2020 decision was commenced out of time, and the challenge to the August 2020 decision was commenced on the last day of the 3-month long-stop period. The Claimants contend that all claims were commenced in time because the indirect discrimination claims and the claims under section 149 of the Act concern “continuing duties”.
Our conclusion on the time issues lies between the positions adopted by the parties. To the extent that the Claimants' challenge is to the legality of a policy, on the assumption that any such policy existed, the challenge was commenced in time. If it exists, the policy will have an existence independent of the specific occasions when it was applied. Events such as the May 2020 decision to appoint Baroness Harding to NHSTT and the decision in August 2020 to appoint her to the NIHP could be relied on as evidence of the existence of the policy.
The individual decisions on how each appointment should be made are not, however, continuing acts. Each was a specific event that took place at a specific time. It is irrelevant that the appointment, once made, continued thereafter. The challenge is to the decision to adopt the process that was used to make the individual appointment. The continuation of the employment is a consequence of the decision challenged, not a continuation of that decision. For this reason, any free-standing challenge to the May 2020 decision appointing Baroness Harding to NHSTT was commenced out of time. The Claimants have made no application to extend time, and, in any event, we can see no basis on which any such application might succeed. Although we consider the challenge to this appointment on its merits, delay on its own provides a sufficient reason to dismiss the Claimant's challenge to this appointment decision.
We have reached a different conclusion so far as concerns the challenge to the appointment process by which Baroness Harding became the Interim Executive Chair of NIHP. Even though the challenge to this decision was not commenced promptly, only on the last day of the 3-month long-stop period, we do not consider it has been commenced too late. In this case, commencing the challenge to the decision on the mode of appointment on the final day of the 3-month period does not give rise to prejudice to the interests of good public administration.
The position so far as concerns the public sector equality duty claim, to the effect that a policy was adopted without compliance with the duty, is that that claim was also commenced out of time. The Claimants' policy challenge case relies on the May 2020 decision as evidence that the policy existed. Any decision to adopt the policy asserted must have been taken by then, at the latest. Contrary to the Claimants' submission, the public sector equality duty claim in this case is not a claim about a “continuing duty”. The duty attaches to the exercise of any function. In this case, so far as concerns the challenge to the formation of a policy, the relevant exercise of...
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