Good Law Project Ltd & Ors, R. ( On Application of) v Secretary of State for Health And Social Care

Standing in judicial review is context-sensitive. A non-economic operator may have standing where it has a genuine interest and expertise, no realistic alternative challenger exists, and the alleged breach is sufficiently grave; direct personal impact is not invariably required. Published policy must be followed unless there is good reason to depart from it. Wording such as “advised” does not remove that duty where the policy sets a precise commitment. Extraordinary workload may explain non-compliance but does not justify it. Mandatory relief may be refused where compliance is nearly complete and no continuing default requires supervision. A declaration will normally mark established illegality. The statutory substantially-different-outcome bar did not prevent relief where timely transparency would have enabled public scrutiny.

The First Claimant, a public-interest organisation, and three Members of Parliament sought judicial review of the Secretary of State’s failures to publish pandemic procurement information. The claim concerned contract award notices under the Public Contracts Regulations 2015 and publication of contract documents under government transparency policies. The Claimants also alleged a deliberate policy of deprioritising transparency and sought to amend the claim to add an alleged breach of regulation 108.

The central issues were standing, amendment, the alleged deprioritisation policy, unlawfulness of non-compliance with the transparency obligations, and declaratory or mandatory relief. A separate application concerned recording and broadcasting the remote hearing.

Claim succeeded in part. The First Claimant had standing and succeeded on the failures to comply with regulation 50 and the Transparency Policy. The Second to Fourth Claimants lacked standing. The amendment application and application for mandatory relief were refused. Declaratory relief was appropriate, with its precise terms to follow corrected figures.

1. Standing. Standing requires a holistic, context-sensitive assessment, including the merits, importance of vindicating the rule of law, the likely absence of another responsible challenger, the gravity of the alleged breach, and the claimant’s expertise and role. The reasoning in R v Secretary of State for Foreign and Commonwealth Affairs ex p. World Development Movement [1995] 1 WLR 386 and R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011 was applied. A non-economic claimant may have standing where it has an identifiable interest or where the gravity of the departure from public-law obligations justifies a remedy. The court must also consider the availability and practicality of remedies for economic operators and whether the procurement regime is being used for its proper purpose. The First Claimant met those requirements because the challenge concerned repeated failures affecting contracts worth billions, and economic operators could not realistically be relied upon to bring it. The MPs did not, because an appropriate claimant already existed and their joinder could increase costs and create an impression of political litigation, applying R (Jones) v Commissioner of Police of the Metropolis [2020] 1 WLR 519.
2. Amendment and policy. The proposed regulation 108 ground was refused. Although it was not a rolling challenge, procedural rigour remained necessary under R (Talpada) v Secretary of State for the Home Department [2018] EWCA Civ 841 and R (Dolan) v Secretary of State for Health and Social Care [2020] EWCA Civ 1065. The ground could have been pleaded at the outset. Regulation 108 required publication within a reasonable time, whereas the 90-day guidance was only a recommendation and its legal effect was disputed. Permitting amendment without evidence directly addressing the allegation would have been unfair.
3. The court accepted the defendant’s written evidence that there was no deliberate policy of deprioritising transparency. The backlog, subsequent acceleration and operational pressures did not establish such a policy. However, failure to follow published policy without good reason is a ground of judicial review. The word advised did not attenuate the precise 20-day commitment in the Transparency Policy. The pandemic provided an explanation for delay, but not a justification. The failures were therefore unlawful, applying the principles in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 and R (Lee-Hirons) v Secretary of State for Justice [2016] UKSC 46.
4. Relief. Mandatory relief was inappropriate because compliance was close to complete and the evidence did not show continuing default requiring supervision, unlike the position in R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28. A declaration will normally mark established illegality where coercive relief is inappropriate, applying R (ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25 and R (Hunt) v North Somerset Council [2015] 1 WLR 3375. Section 31(2A) of the Senior Courts Act 1981 did not bar relief: timely publication would have enabled substantially greater scrutiny.
5. Broadcasting. Section 41 of the Criminal Justice Act 1925 prohibited photographing and recording, including video recording, and constrained the court’s inherent jurisdiction. The statutory provisions concerning wholly video proceedings did not empower the Administrative Court to permit recording for broadcast. Section 86B(6)(b) merely defined when recording or transmission was unauthorised for the purposes of the offence.