R (Good Law Project Ltd) v Prime Minister

The claimants challenged a number of government appointment decisions taken during the COVID-19 pandemic on grounds of indirect discrimination under the Equality Act 2010 (in particular section 19 read with section 50), failure to comply with the public sector equality duty (section 149), and apparent bias. The court analysed preliminary issues of justiciability: whether the challenges were academic, time-barred under CPR 54.5(1), whether the claimants had standing, and whether the appointment decisions were amenable to judicial review. The court rejected the existence of any general policy or practice of closed, unpaid recruitment on the evidence and found that the indirect discrimination claims failed on the facts. The court held that most claims were barred by delay or were not amenable to judicial review or lacked standing, but it found breaches of the public sector equality duty in relation to two specific appointment-process decisions (August 2020 interim appointment of Baroness Harding to the NIHP and September 2020 appointment of Mike Coupe as Director of Testing) and granted a declaration in respect of those PSED failures.

This judicial review claim, issued November 2020, was brought by Good Law Project Limited and the Runnymede Trust against the Prime Minister and the Secretary of State for Health and Social Care. The claim contended that a policy or practice had been applied in pandemic-related senior appointments (notably the May 2020 appointment of Baroness Harding to lead NHS Test and Trace, her August 2020 interim appointment to the National Institute for Health Protection, and the September 2020 appointment of Mike Coupe as Director of Testing) involving closed recruitment, selection of appointees known to decision-makers, and failure to offer remuneration. The claimants alleged indirect discrimination (Equality Act 2010 sections 19 and 50), breach of the public sector equality duty (section 149), and apparent bias in relation to Mr Coupe's appointment. Remedies sought included declarations and other relief appropriate on judicial review.

Issues the court framed and decided included:

• whether the challenges were academic because the appointments had ended;
• whether claims were time-barred or not promptly brought under CPR 54.5(1);
• whether each claimant had sufficient interest (standing) to bring the various grounds;
• whether the individual employment/appointment decisions were amenable to judicial review rather than more appropriately litigated in the Employment Tribunal;
• the substantive merits on whether a policy/practice existed, whether it caused a particular disadvantage to protected groups, whether the public sector equality duty had been complied with, and whether there was apparent bias.

The court reasoned as follows. The challenges were not wholly academic and could serve a practical purpose; however, discrete appointment decisions are not "continuing acts" for time-limit purposes and some complaints were therefore time-barred (notably the May 2020 appointment challenge). On standing the court applied principles from National Federation, AXA and Walton and concluded that Good Law Project lacked sufficient interest to bring the discrimination and PSED challenges in this forum, whereas Runnymede Trust had standing to pursue the PSED challenge. The court emphasised the established rule that employment selection disputes are ordinarily for employment tribunals and declined to treat the individual appointment discrimination claims as amenable to judicial review except to the extent that a general policy of appointment of wider effect could be shown.

On the merits the court accepted that the law requires proof that an actionable "provision, criterion or practice" existed and that it put persons sharing a protected characteristic at a particular disadvantage. Applying Ishola and Coker & Osamor, and having regard to the evidential approach in judicial review (where contested primary facts are generally resolved in favour of the public authority absent cross-examination), the court concluded there was insufficient evidence of any general policy or practice of closed or unpaid recruitment or of a particular disadvantage to protected groups. The indirect discrimination claims therefore failed. However, the court found that the decision processes for two appointments (August 2020 and September 2020) lacked any evident analysis or contemporaneous material showing compliance with the public sector equality duty and accordingly held that those appointment-process decisions breached section 149. The apparent-bias challenge to Mr Coupe's appointment failed both because the fair-minded and informed observer would not infer a real possibility of bias and because the apparent-bias doctrine is inapt to everyday employment recruitment decisions.

The court granted a declaration that the Secretary of State did not comply with the public sector equality duty in relation to the decisions about how to appoint Baroness Harding as Interim Executive Chair of the NIHP (August 2020) and Mike Coupe as Director of Testing for NHS Test and Trace (September 2020). All other claims failed: Good Law Project's claims were dismissed in their entirety; Runnymede Trust's indirect discrimination and apparent-bias claims failed, but its PSED claim succeeded in respect of the two appointment-process decisions above.

The claim succeeded in part. The court dismissed the indirect discrimination claims on the merits (no sufficiently established provision, criterion or practice had been proved), dismissed most challenges for delay, lack of standing or non-amenability to judicial review, and rejected the apparent-bias challenge. However, the court held that the Secretary of State breached the public sector equality duty in relation to the decisions on the process for appointing Baroness Harding as Interim Chair of NIHP (August 2020) and Mike Coupe as Director of Testing (September 2020), and granted a declaratory remedy in respect of those PSED breaches. Good Law Project lacked standing for the PSED claim; Runnymede Trust had standing to bring the PSED challenge and prevailed on those two aspects.