Rook Irwin Sweeney acts in successful challenge relating to key appointments to public sector roles made without open competition or recruitment

Judgment has been handed down today in a judicial review brought by our clients Good Law Project and the Runnymede Trust, against the Prime Minister and the Secretary of State for Health and Social Care. The challenge concerned three key public appointments made during the Covid 19 pandemic, which were “closed appointments”, and so made without open competition and recruitment. They were:

1. The appointment of Dido Harding as Chair of NHS Test and Trace on 7 May 2020;
2. The appointment of Dido Harding as Head of the National Institute for Health Protection, which came to be known as the UK Health Security Agency, in August 2020;
3. The appointment of Mike Coupe as Director of Testing at NHS Test and Trace in September 2020.

Our clients argued that operating closed recruitment processes was discriminatory, breached the public sector equality duty, and gave rise to apparent bias. They were particularly concerned that the lack of fair or open competitive recruitment processes for these appointments disadvantaged people from minority groups, including disabled people and those from minority ethnic groups, who are already under-represented within the senior civil service. Dido Harding – the wife of a former Conservative minister and a personal friend of David Cameron – was offered the positions directly by the Prime Minister and Secretary of State for Health and Social Care. Mike Coupe is a former colleague of Dido Harding, and she had put him forward for the role as Director of Testing at NHS Test and Trace.

Lord Justice Singh and Mr Justice Swift concluded that the appointment of Dido Harding as Head of the NIHP and the appointment of Mike Coupe to NHS Test and Trace did not comply with the public sector equality duty.  Giving judgment, they held that

On behalf of the Claimants it is submitted that this is exactly the kind of case in which careful consideration of the public sector equality duty had the potential to enable the decision-makers to take straightforward steps to avoid the risk of discriminatory impact. It is submitted that it is essential that proper thought should be given to how to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. The Claimants submit the Defendants have provided no evidence of compliance with the duty, only witness statements containing generalised assertions about corporate commitments to diversity and given unrelated examples of that commitment…..

What the public sector equality duty requires is not necessarily a particular outcome, for example an open recruitment policy. Nevertheless, 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. Even in the context of direct appointments, the Desk Note from the Cabinet Office makes it clear, at paragraph 8(d), that the factors which should be considered when selecting an appointee for a direct appointment include “how discrimination law, including the Public Sector Equality Duty, is complied with”.

We have considered with care the evidence filed on behalf of the Defendants and cannot find any such evidence.

Significantly, the judgment confirms that a public body cannot lawfully make public appointments without considering what steps can be taken in that process to avoid the risk of discrimination, and to advance equality of opportunity – even where normal appointment processes don’t apply, and even in a public health emergency.

February 2022

Photo by Clay Banks on Unsplash