High Court Considers Judicial Review Of Public Sector Appointments Made During The Pandemic

• Published date: 06 April 2022
• Subject Matter: Employment and HR, Government, Public Sector, Discrimination, Disability & Sexual Harassment, Constitutional & Administrative Law
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa and James Wood

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...