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Health Secretary breached public sector equality duty when making senior appointments during pandemic, Divisional Court rules

The Government did not comply with the public sector equality duty when appointing two senior officials to roles as part of its response to the pandemic, the Divisional Court has found.

The ruling in Good Law Project & Anor, R (On the Application Of) v The Prime Minister & Anor [2022] EWHC 298 (Admin) concerned the appointment by the then Secretary of State for Health and Social Care, Matt Hancock, of Baroness Harding as interim executive chair of the National Institute for Health Protection in August 2020 and of Mike Coupe as director of testing for NHS Test and Trace in September 2020.

Racial equality organisiation Runnymede Trust succeeded on its case about Baroness Harding and Mr Coupe in relation to the PSED. However the Divisional Court (Lord Justice Singh and Mr Justice Swift) rejected allegations of apparent bias and indirect discrimination.

The Court held that the other claimant, the Good Law Project, lacked standing to bring the cases.

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Earlier Government decisions to appoint Baroness Harding chair of the Test and Trace Task Force and Kate Bingham to lead the Vaccines Task Force were also the subject of objections but the judges held the action on these was out of time.

The Runnymede Trust and the Good Law Project argued that the government had a policy by which people were appointed to positions critical to the pandemic response without open competition, and that only candidates with some relevant personal or political connection to Mr Hancock or Prime Minister Boris Johnson were appointed.

Baroness Harding is a Conservative peer and is married to a Conservative MP. Mr Coupe is a former chief executive of Sainsbury’s.

The posts were also unpaid, and the claimants said taken together these policies gave rise to indirect discrimination on grounds of race and/or disability.

The claimants argued that the appointment process breached the PSED in section 149 of the Equality Act 2010, which requires decision makers to have due regard to the need to eliminate discrimination and to advance equality of opportunities, and that the appointments were made without this being observed.

Lord Justice Singh and Mr Justice Swift rejected a claim by the Department of Health and Social Care that the case had become academic as it had been overtaken by events.

On the PSED the judges said: “There must be some evidence of what precisely the decision-maker did in the circumstances of these cases to discharge the obligation when deciding the method by which each relevant appointment was to be made.”

They added: “We have considered with care the evidence filed on behalf of the defendants and cannot find any such evidence…there is no evidence from anyone saying exactly what was done to comply with the public sector equality duty when decisions were taken on how each appointment was to be made.”

On the Good Law Project’s standing, the judges noted that it is a limited company whose articles give it a wide range of interests including “to provide the sound administration of the law and to challenge injustice and inequality” and to “uphold democracy and promote changes to the law and public administration with the aim of improving social justice, equality and inclusion”.

The judges held: “No individual, even with a sincere interest in public law issues, would be regarded as having standing in all cases.

“We do not consider that the position differs simply because there is a limited company which brings the claim. It also cannot be right as a matter of principle that an organisation could in effect confer standing upon itself by drafting its objects clause so widely that just about any conceivable public law error by any public authority falls within its remit.”

A spokeswoman for the Good Law Project told Local Government Lawyer: “We are not planning to appeal this decision because we got what we came for: a finding that Government broke the public sector equality duty.

“There are, however, a couple of other cases where we expect the standing issue to crop up at a senior appellate level: the PPE case, where we are seeking permission to appeal to the Court of Appeal, and the Public First case, where we are seeking permission to appeal to the Supreme Court.”

A Runnymede Trust statement said: “The Runnymede Trust was moved to join this judicial review at the peak of the pandemic when disabled, Black and minority ethnic citizens were dying disproportionately from Covid.

“It seemed logical and indeed imperative that those appointed to help lead the nation out of the pandemic were the best candidates for the job or, at a bare minimum, extensively experienced and fully qualified in the area of public health.

“Neither Baroness Harding nor Mr Coupe is medically trained. Neither has a lifetime of public administration under their belt. It should not be acceptable to drop our standards during complex health emergencies when countless lives are at stake, in particular the lives of some of our country’s most vulnerable citizens. This is when the rule of law most needs to be upheld. This is why the rule of law exists.”

Mark Smulian

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