The Project Management Institute, R (On the Application Of) v The Minister for the Cabinet Office & Ors

A published public-law policy must be applied according to its proper construction, but need not operate as a rigid checklist. Where the policy uses flexible language and identifies the public interest as material, the decision-maker may make an overall judgment, taking account of the extent to which stated criteria are met and the public interest. Failure to satisfy every criterion does not necessarily require refusal. If the decision departs from the policy, a good reason is required; a compelling public interest will suffice.

For apparent bias, the question is whether the fair-minded and informed observer would conclude that there was a real possibility of bias. Governmental links with a proposed beneficiary, prior support and an indirect financial interest do not establish apparent bias where the final decision followed a fair, independent and genuine reconsideration of all relevant representations.

The Project Management Institute challenged the decision of a Privy Council committee to recommend that a Royal Charter be granted to the Association for Project Management. The challenge alleged departure from the Privy Council Office’s published criteria and apparent bias. Mitting J rejected the substantive claim in the High Court: [2014] EWHC 2438 (Admin).

The Court of Appeal considered whether the decision was amenable to judicial review, whether the published policy had been unlawfully disregarded, and whether the committee’s handling of the application, its links with the Association, possible financial interests or prior support created a real possibility of bias.

1. Amenability and standing. The decision to recommend the exercise of the Royal Prerogative to grant a Royal Charter was in principle amenable to judicial review. A competitor claiming adverse effect from the proposed grant had a sufficient interest under section 31(3) of the Senior Courts Act 1981. The High Court was wrong to treat the claim as outside the established framework, although the error did not affect the result.
2. Construction and application of the policy. The published Privy Council Office material constituted a policy, and its construction was a matter for the court. It was to be read broadly in context, not as a statute or contract. The references to what an applicant would normally be expected to meet, the role of the public interest and the statement that meeting the criteria would not automatically secure a Charter showed that the five criteria were not hard-edged or a mandatory tick-box exercise.
3. The committee was entitled to conclude that project management was a unique profession; that APM covered a substantial percentage of the eligible field; that the overlap between APM and PMI was not significant; and that the degree criterion was met on a broad-brush assessment. Criterion (d) was properly read alongside the wider public-interest question. The statement that a proposal made controversial by a counter-petition was unlikely to succeed was advice, not a criterion or binding policy requirement.
4. The recommendation was a proper application of the policy. The committee could weigh a compelling public interest in favour of a Charter against failure to meet some criteria in full. Alternatively, if full compliance were required, that compelling public interest was a good reason to depart from the policy.
5. Apparent bias. Applying the test in Porter v Magill [2001] UKHL 67, the relevant question was whether the fair-minded and informed observer would conclude that there was a real possibility of bias. The transfer of responsibility to officials without prior relevant involvement, an independent assessment, full consideration of PMI’s representations and fresh ministerial recommendations meant that the alleged governmental, operational, personal and financial links did not establish apparent bias or predetermination.
6. The appeal was dismissed.

• Court of Appeal (Civil Division) dismissed the appeal and upheld the High Court’s substantive conclusion on the judicial review challenge: [2016] EWCA Civ 21.
• High Court of Justice, Queen’s Bench Division, Administrative Court (Mitting J) rejected the challenge to the recommendation to grant APM a Royal Charter: [2014] EWHC 2438 (Admin).