The Queen (on the application of the Project Management Institute) v The Minister for the Cabinet Office and Others The Association for Project Management (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Underhill,The Master of the Rolls |
| Judgment Date | 22 January 2016 |
| Neutral Citation | [2016] EWCA Civ 21 |
| Date | 22 January 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2014/2614 |
[2016] EWCA Civ 21
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Mr Justice Mitting
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Richards
and
Lord Justice Underhill
Case No: C1/2014/2614
and
Jonathan Crow QC and Amy Rogers (instructed by White & Case LLP) for the Appellant
Karen Steyn QC and Tom Cross (instructed by Government Legal Department) for the Respondents
Michael Fordham QC and Paul Luckhurst (instructed by Allen & Overy LLP) for the Interested Party
Hearing dates: 17–18 November, 2015
In these proceedings the Project Management Institute ("PMI") challenges a decision by a committee of the Privy Council to recommend to The Queen in Council that a Royal Charter should be granted to the Association for Project Management ("APM"). PMI was granted permission to apply for judicial review of the decision on two grounds, relating broadly to failure to follow the Privy Council's published policy and to apparent bias, but was refused permission on three further grounds. In his judgment on the substantive claim for judicial review, handed down in July 2014 (see [2014] EWHC 2438 (Admin)), Mitting J found against PMI on both grounds for which permission had been granted. Permission to appeal was granted by Laws LJ, having regard to the fact that this was the first time that the grant or refusal of a Royal Charter had been challenged in the courts.
The first ground of appeal relates to the amenability of the committee's decision to judicial review. Mitting J held that PMI's challenge based on breach of the published policy could not be brought within the established framework of judicial review, and he would have been prepared to dismiss the claim on that ground alone (though he went on to consider the merits of the claim in case he was wrong on that issue). PMI submits that the judge was wrong so to hold. The respondents do not seek to support the judge's judgment on this point. They have accepted throughout the proceedings that the decision is amenable to judicial review and they have taken no point on PMI's standing to bring the claim.
The second ground is that the judge was wrong to hold that the decision was consistent with the published policy.
The third ground is that the judge was wrong to reject PMI's case of apparent bias and in particular that he was wrong to hold that a fair-minded and informed observer, having considered all the relevant facts, would not conclude that there was a real possibility that the committee was biased.
The relevant policy
An account of the history and nature of Royal Charters is to be found at paragraph 2 of Mitting J's judgment, which I will not repeat. At paragraph 3 the judge summarised the general nature of the application process as follows:
"3. An organisation seeking the grant of a Royal Charter must petition Her Majesty the Queen in Council. On its website, the Privy Council Office invites informal approaches before a petition is lodged, to afford that office the opportunity of giving advice about the chances of success. Petitioners are advised to take soundings among bodies which may have an interest in the outcome. Once a formal petition has been lodged, it is advertised in the London Gazette. Any objector is entitled within six weeks to lodge a counter-petition. The petition is considered by a sub-committee of the Privy Council, comprising Ministers of the departments most closely connected with the activities of the petitioner. Unanimity amongst the members of the committee is required before a recommendation for the grant of a Royal Charter is made."
The information published on the Privy Council Office's website gives greater detail. I need to set it out because it forms the background to the whole case and the basis of the ground of appeal relating to departure from the published policy.
A web page headed "Chartered bodies" states:
"… New grants of Royal Charters are these days reserved for eminent professional bodies or charities which have a solid record of achievement and are financially sound. In the case of professional bodies they should represent a field of activity which is unique and not covered by other professional bodies.
At least 75% of the corporate members should be qualified to first degree level standard. Finally, both in the case of charities and professional bodies, incorporation by Charter should be in the public interest.
The last consideration is important, since once incorporated by Royal Charter a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to Charters can be made only with the agreement of The Queen in Council, and amendments to the body's by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body, and the Privy Council will therefore wish to be satisfied that such regulation accords with public policy."
In similar vein, a web page headed "Royal Charters" states that "new Charters are normally reserved for bodies that work in the public interest (such as professional institutions and charities) and which can demonstrate pre-eminence, stability and permanence in their particular field".
Under the heading "Applying for a Royal Charter", another web page states:
" Introduction
An application for a Royal Charter takes the form of a Petition to The Sovereign in Council. Charters are granted rarely these days, and a body applying for a Charter would normally be expected to meet a number of criteria. Each application is dealt with on its merits, but in the case of a professional institution the main criteria are:
(a) the institution concerned should comprise members of a unique profession, and should have as members most of the eligible field for membership, without significant overlap with other bodies;
(b) corporate members of the institution should be qualified to at least first degree level in a relevant discipline;
(c) the institution should be financially sound and able to demonstrate a track record of achievement over a number of years;
(d) incorporation by Charter is a form of Government regulation as future amendments to the Charter and by-laws of the body require Privy Council (i.e. Government) approval. There therefore needs to be a convincing case that it would be in the public interest to regulate the body in this way;
(e) the institution is normally expected to be of substantial size (5,000 members or more).
It should be stressed that appearing to meet these criteria does not mean that a body will automatically be granted a Charter.
Preliminary Steps
The fact of a formal Charter application will be published by this office, to allow other interested individuals or organisations to comment or to lodge counter-petitions. Because the process of Petitioning for a Charter is thus a public one, and can also be expensive in terms of the preparation of the formal documents, the Office encourages institutions to have taken soundings among other bodies who may have an interest, in order to minimise the risk of a counter-petition. Any proposal which is rendered controversial by a counter-petition is unlikely to succeed.
The Privy Council Office should be approached informally at an early stage so that we can give advice on the likely chances of success of a formal petition. What is required for this purpose is a memorandum covering:
(a) the history of the body concerned;
(b) the body's role;
(c) details of number of members, grades, management organisation and finance;
(d) the academic and other qualifications required for membership of the various grades;
(e) the body's achievements;
(f) the body's educational role within its membership and more widely;
(g) an indication of the body's dealings with Government (including details of the Government Department(s) with the main policy interest, or which sponsor(s) the body, together with contact details of officials who deal with the body), and any wider international links;
(h) evidence of the extent to which the body is pre-eminent in its field and in what respects;
(i) why it is considered that the body should be accorded Chartered status, the reasons why a grant would be regarded as in the public interest and, in particular, what is the case for bringing the body under Government control as described above.
At this stage if the draft Charter and by-laws are available they should be emailed to … along with the memorandum."
There follows guidance about the form and content of the formal petition, including that the information contained in it should always include, in addition to various details, "generally the grounds on which it is submitted that the grant of a Charter is desirable and justified".
APM and PMI
Mitting J gave the following summary of the status and activities of APM and PMI respectively:
"5. APM is a company limited by guarantee and a registered charity. In May 2008, it claimed to have 16,340 individual members in the United Kingdom. It puts its individual membership now at about 20,000. In addition, it has about 500 corporate members, including several Government departments. Its object, set out in its Articles of Association and in paragraph 2 of...
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