THE QUEEN (on the application of (1) GOOD LAW PROJECT LIMITED (2) RUNNYMEDE TRUST) v THE PRIME MINISTER

Standing for judicial review depends on the context, the claimant’s interest and what best serves the purposes of judicial review. A company cannot confer universal standing upon itself through widely drafted objects.

Individual public-sector employment decisions are ordinarily unsuitable for judicial review. The public sector equality duty nevertheless applies to all functions of a public authority, including employment functions. A decision-maker must provide evidence of substantive and timely consideration of that duty. General commitments to diversity are insufficient.

Apparent-bias principles do not extend to employment recruitment decisions, which are not adjudicative. A declaration may mark a breach of the equality duty even where the claimant could not itself have been appointed.

Two campaigning organisations sought judicial review of processes used to appoint senior personnel involved in the Government’s response to COVID-19. They alleged indirect race and disability discrimination, breach of the public sector equality duty and apparent bias. The defendants disputed the merits and raised delay, standing, amenability and academicity.

The court considered three appointments: two appointments of Baroness Harding and the appointment of Mike Coupe. It addressed whether the alleged recruitment policy or practices existed, whether the claimants had standing, whether individual employment decisions were amenable to judicial review, and whether the appointment processes complied with the Equality Act 2010.

1. The claim succeeded only in part. The Good Law Project’s claim failed entirely. The Runnymede Trust failed on indirect discrimination and apparent bias, but established that two appointment processes had not complied with the public sector equality duty. The court granted a declaration against the Secretary of State for Health and Social Care.

2. Standing is contextual and is closely connected with the legal and factual merits. The Good Law Project’s broadly drafted objects could not give it standing in every public law case. The Runnymede Trust had standing for the public sector equality duty challenge because its specific purpose of promoting racial equality made it the better-placed claimant. Neither claimant had standing to challenge individual appointments for discrimination or apparent bias.

3. Individual employment decisions by public authorities are not ordinarily amenable to judicial review. An affected individual would normally proceed in the Employment Tribunal. Judicial review may apply to an employment decision of general application or to a genuinely public-law decision concerning a statutory office, but the individual appointments here fell outside those categories.

4. The indirect discrimination claim failed on its facts. The appointment processes arose from distinct and urgent circumstances and did not establish a provision, criterion or practice of closed recruitment, politically connected appointment or unpaid service. Nor did the general statistical and policy material prove the specific particular disadvantage required by section 19 of the Equality Act 2010.

5. The public sector equality duty applies to all functions of a public authority, including employment functions. It is a duty of process rather than outcome. The evidence must show what the decision-maker actually did, before or when deciding, to consider the statutory needs. General reliance on a recruitment consultant’s diversity commitments was insufficient. The August 2020 and September 2020 appointment processes therefore breached the duty.

6. The apparent-bias claim also failed. A fair-minded and informed observer would not infer a real possibility of bias from a limited professional connection about ten years earlier. More fundamentally, apparent-bias principles apply to adjudicative decision-making and do not extend to employment recruitment exercises.

7. Section 31(2A) of the Senior Courts Act 1981 did not require refusal of declaratory relief. The declaration appropriately recorded the procedural breaches without declaring the appointments themselves unlawful.

not stated in the judgment.