R (Good Law Project Ltd) v Secretary of State for Health and Social Care [2021] EWHC 346 (Admin)

Key Point

In judicial review of procurement mechanisms adopted by the Secretary of State during the Covid-19 pandemic, Good Law Project had standing to challenge the approach of the Minister.

Facts

  • The claimants applied for judicial review of Health Secretary’s approach to procurement law and policy when awarding government contracts during the pandemic.
  • The first claimant (Good Law Project) is a non-profit organisation which campaigns for transparency and general governance. The remaining three claimants were all MPs.

Issue

Did the Good Law Project have standing? Did the MPs have standing?

Held (High Court)

Good Law Project did have standing; the MPs did not have standing.

Chamberlain J

Discussion

  • Since the early 1980s, the courts of England and Wales have generally adopted a liberal approach to the question of standing. Two important propositions can be derived from the Divisional Court’s judgment in World Development Movement at 395G-H and the case law cited there. The first is that, particularly once permission has been granted, “the merits of the challenge are an important, if not dominant, factor when considering standing”. The second is that a non-governmental organisation with genuine expertise and experience in the area of decision-making under challenge may have standing depending on a holistic assessment of other factors: “the importance of vindicating the rule of law…; the importance of the issue raised…; the likely absence of any other responsible challenger…; the nature of the breach of duty against which relief is sought…; and the prominent role of the applicants [in the relevant subject area]” [96]
  • However, the application of these general principles is acutely sensitive to context. This is because the question whether it is necessary to confer standing to vindicate the rule of law depends, among other things, on the availability in principle and in practice of alternative challengers and alternative remedies. [97]

The Starting Point – R (Chandler) v Secretary of State for Children, Schools and Families [2009] EWCA Civ 1011

Chamberlain J drew the following propositions from the reasoning of the Court of Appeal in Chandler:

  • (a) In the context of an individual procurement decision, a failure to comply with the 2006 Regulations is an unlawful act and thus “a paradigm situation in which a public body should be subject to review by the court”, even where there is no economic operator who wishes to bring private law proceedings: [77].
  • (b) A claimant may have standing to challenge an individual procurement decision if:
    • (i) the claimant has a sufficient interest in compliance with the procurement regime in some identifiable way
    • (ii) “the gravity of a departure from public law obligations” justifies the grant of a public law remedy: [77].
  • (c) The recognition that standing may arise in situation (ii) shows that, even where the challenge is to an individual procurement decision, the Court of Appeal in Chandler did not intend to make it a precondition of standing that the claimant could show that he was personally “affected in some identifiable way” by the challenged decision. This is consistent with the general principles enunciated in World Development Movement.
  • (d) Alongside the “gravity” of the breach alleged, the court must also consider whether there are other more appropriate ways for the alleged breach to be litigated.
  • (e) In considering whether a public law remedy is necessary, the court should consider whether the claimant is “attempting to use the public procurement regime for a purpose for which it was not created”: [78]. The two examples of cases where the claimant failed this test, Chandler itself and Kathro, were both cases in which the claimant had no “interest in the observance of the public procurement regime” but was seeking to use that regime as a tool with which to challenge a decision to which she or he was opposed. This again seems to me to be consistent with the focus in World Development Movement on the experience, expertise and aims of the challenger.
  • (f) Unless it is appropriate to deal with standing as a preliminary issue, once permission to apply for judicial review has been granted, courts are not encouraged to spend valuable court time on the issue of standing, especially in a borderline case.

Neat Summary: [100]

  • These principles provide a proper basis for denying standing to some, perhaps many, claimants who wish to challenge individual procurement decisions, but cannot show that they will be affected in an identifiable way by the challenged decision. In such cases, the court may conclude that the decision challenged is one which could have been challenged by economic operators or by other persons directly affected. In the absence of a challenge by such a person, the court may then decide that the alleged breach is not of such gravity that there is a pressing need for the issue to be determined at the instance of a challenger who is not directly affected. Such a conclusion may be particularly likely in a case where the challenger is seeking to use the procurement regime as a tool with which to attack a decision to which he is opposed for other reasons.

Current Case

Good Law Project has standing to bring the case for the following reasons:

  • Here, by contrast [to cases such as Chandler], what is challenged is not the decision to award a particular contract, nor the decision to use a particular procedure for the award of a particular contract, nor even the failure to publish a CAN in any particular case. Even focussing on ground 1 alone, the target of the Claimants’ challenge is much broader and more general: the Secretary of State’s repeated failure, across the whole class of contracts awarded in the context of the pandemic, to comply timeously with the obligation imposed by reg. 50 in cases where that obligation applies. [102]
  • An important purpose of the requirement to publish a CAN is to alert the public, including economic operators who might have hoped to be awarded the contract themselves, to the fact that a contract has been awarded. This purpose is particularly important in a case where the contract has been awarded without a competitive tender, because in such a case the public, including economic operators, may have no idea that the public body concerned was even looking to award the contract. [103]
  • A challenge alleging breach of the transparency obligations imposed by the PCR 2015, and by associated policies, is accordingly not one that an economic operator can realistically be relied upon to bring. The position of the First Claimant in this regard is relevantly analogous to that of the World Development Movement. It has a sincere interest, and some expertise, in scrutinising government conduct in this area. There is no allegation (and no evidence) that it is seeking to use the public procurement regime as a tool for challenging decisions which it opposes for other reasons. There is no dispute about the importance of the transparency obligations it claims have been breached. As to the “gravity” of the alleged breaches, they relate to contracts worth (at least) several billion pounds; and there is a pleaded allegation (in respect of which permission has been granted) that they result from a deliberate policy on the part of the Secretary of State. To my mind, there is a powerful public interest in the resolution, one way or the other, of the issues raised. [104]

The MPs did not have standing

  • The Second to Fourth Claimants are, however, in a different position. I have no doubt that they have a genuine and sincere interest in the issues the subject of this litigation. […] But the availability of a better placed challenger remains an important – and often determinative – factor in considering whether it is necessary to accord standing to a person who is not herself directly affected by the decision challenged or the relief sought. Where there is already a claimant or claimants with standing, there is no reason to accord standing to additional parties. [106]
  • It is particularly important that this guidance is adhered to in cases where the parties sought to be added are politicians. No doubt, the addition of politicians as parties may raise the profile of the litigation. It may make it easier to raise funds. But these are not proper reasons for adding parties. In a case where there is already a claimant with standing, the addition of politicians as claimants may leave the public with the impression that the proceedings are an attempt to advance a political cause, when in fact their sole legitimate function is to determine an arguable allegation of unlawful conduct. [107]