A question of standing

18 February 2022 by

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

This was an interesting ruling on the matter of standing, something that has fallen rather by the wayside since it formed the subject of much satellite litigation in the 1990s. In essence, the Court ruled that the GLP had no standing to bring this claim. Despite its articles of association, whose purposes include the provision of sound administration and equality, democracy, high standards in public administration, access to justice, preservation of the environment or “any other philanthropic or benevolent purpose ancillary”. Such a general statement of objects could not confer standing on an organisation:

That would be tantamount to saying that the GLP has standing to bring judicial review proceedings in any public law case. [58]

Arguments before the Court

The GLP and the Runnymede Trust brought a challenge to the government’s decision to appoint two individuals to head Covid projects such as the Test and Trace programme (Baroness Harding of Winscombe (Dido Harding) was one of the individuals named). Mike Coupe, Director of Testing, NHS Test & Trace, was the other.

The claimants contended that the government had a practice of appointing people 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 were appointed, and that, even though the positions to be filled were senior and strategically important, the person appointed was unpaid. The Claimants said this gave rise to indirect discrimination on grounds of race and/or disability. They made other complaints about the process used by the Defendants.

The Defendants disputed all these claims on their merits. In addition, they contended (a) that the matters complained of had 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 had been brought too late and should be dismissed for that reason; and (c) that the Claimants lacked standing to bring the claims. There was also one further matter, which the Court considered in the context of the standing issue, although it was conceptually distinct. That was whether the decisions challenged were amenable to judicial review. Each of the decisions challenged in these proceedings was an employment decision. Employment decisions, even when taken by public authorities, are not ordinarily challengeable by application for judicial review.

The Court’s conclusions

Was the challenge academic?

The Court rejected this submission. The present case was not one in which either passage of time or changing circumstances had rendered the grounds of challenge redundant.

Delay

The Defendant’s contention on delay was not rejected in its entirety. To the extent that the Claimants’ challenge was to the legality of a policy, on the assumption that any such policy existed, the challenge was commenced in time. But individual decisions on how each appointment should be made were not, however, continuing acts. Each was a specific event that took place at a specific time.

Standing and amenability to judicial review

Often the question 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 Self-Employed and Small Businesses Ltd [1982] AC 617.)

The claimants drew the court’s attention to the trend towards “liberalisation” of the test for standing in practice, and J acknowledged that in a number of cases the courts have accepted that claimants had standing even though they were not directly affected by a decision: e.g., pressure groups and even public-spirited individuals have been recognised as having standing in appropriate cases. But what is notable, is that, as the Claimants themselves say in their written submissions, such examples of judicial review challenges have been brought by NGOs “in their fields of interest”. Numerous examples can be found, some of which are set out by the Claimants: e.g., R v Secretary of State for Foreign and Commonwealth Affairs, ex p. World Development Movement Ltd  [1995] 1 WLR 386; R (Refugee Legal Centre) v Secretary of State for the Home Department  [2004] EWCA Civ 1481[2005] 1 WLR 2219; and R (Motherhood Plan) v HM Treasury  [2021] EWCA Civ 1703.

The Court considered some of the reflections on this theme by Lord Reed in Walton v Scottish Ministers [2012] UKSC 44, at paragraphs 89 and following. At paragraph 92 of that judgment, Lord Reed said:

… a distinction must be drawn between the mere busybody and the person affected by or having a reasonable concern in the matter to which the application relates….A busybody is someone who interferes in something with which he has no legitimate concern. The circumstances which justify the conclusion that a person is affected by the matter to which an application relates, or has a reasonable concern in it, or is on the other hand interfering in a matter with which he has no legitimate concern, will plainly differ from one case to another, depending upon the particular context and the grounds of the application.

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

The test for standing was discretionary and not “hard-edged”. On the other hand the issue of standing was one that went to the court’s jurisdiction and therefore it was not open to the parties to confer that 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 of the Claimants before had standing to pursue the indirect discrimination claims. This was not a case where all members of the public are equally affected.

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

No individual, even with a sincere interest in public law issues, would be regarded as having standing in all cases. We do not consider that the position differs simply because there is a limited company which brings the claim. It also cannot be right as a matter of principle that an organisation could in that an organisation could in effect confer standing upon itself by drafting its objects clause so widely that just about any conceivable public law error by any public authority falls within its remit. [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 that were made without compliance to the public sector equality duty. But the Good Law Project did not.

As to the amenability of the challenges to judicial review, practical considerations point in the other direction. The Employment Tribunal – where the relevant cause of action more appropriately existed – was far better suited than the Administrative Court to adjudicate on disputes of fact likely to be material to the outcome of any discrimination claim.

In any event, judicial review would not usually be permitted in circumstances where there is an adequate alternative remedy available.

The position of the Claimants so far as concerns proceedings in the Administrative Court cannot be improved by the fact that they themselves could not have brought proceedings in the Employment Tribunal. To the contrary, this underlines the fundamental point that this aspect of the case is simply not amenable to judicial review.[47]

The Ruling

All the claims failed, either because they were brought late or because the decisions challenged were not amenable to judicial review, or because the claimants lacked standing, save for the public sector equality duty claims directed to the decisions to appoint Baroness Harding to the position as interim chair of the National Institute for Health Protection and Mike Coupe to the position of director of testing at NHS Test & Trace. Those two matters could be pursued but only by the Runnymede Trust.

The court nevertheless considered the substance of the claims:

Indirect discrimination: There was no evidence that the three appointment processes relied on were connected in any material way, to be part of any relevant pattern or practice.

Public Sector Duty: The public sector equality duty claim succeeded in respect of the decision to appoint Coupe as director of testing for NHSTT and the decision in August 2020 that Baroness Harding should be the interim chair of the NIHP.

Apparent Bias:  The principles of apparent bias had no application to employment recruitment exercises. 

GLP’s claim failed in its entirety. As far as the Runnymede Trust was concerned, the court would grant a declaration that the secretary of state had not complied with the public sector equality duty in relation to the appointment decisions above.

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