Last month we told you about the Court’s decision that the Government had failed to comply with its obligations under equalities laws when appointing Dido Harding and Mike Coupe to important public health jobs during the pandemic. The Court’s finding that the Government ignored the public sector equality duty should have significant ramifications for the Government’s general approach to recruitment. However, the Court did not accept the argument that the Government had adopted a closed recruitment practice that indirectly discriminated against people with disabilities and/or those of colour.

We have now received an Order from the Court, requiring us and the Runnymede Trust to pay 80 per cent of the Government’s costs in this case. These are estimated to be £360,000 but will be subject to a detailed assessment by the Court in due course. We indemnified the Runnymede Trust against this risk to enable them to participate in the litigation and Good Law Project will meet these costs, using the funds you have so generously donated.

We emphasised to the Court the Government’s poor conduct when it came to costs, in particular the fact that their initial estimate ballooned from costs ‘in the region of £35,000 to £50,000’ to £360,000, and that updates were only provided when it was too late for us to seek costs protection. The Court was not prepared to adjust its Order in light of these points.

We think the Court’s treatment of costs is exceptionally harsh. We will review it with our counsel - however, it is unlikely we will be able to alter the Order.

We brought this case, alongside the Runnymede Trust, to force the Government to take seriously its legal, and moral, obligations to narrow the disadvantages faced by those outside the closed circle of people with disabilities and those of colour. We expect the Government to take steps going forward to ensure that its recruitment processes are fair, equitable and open to all. 

Thank you, as always, for your support. 

In a landmark verdict, the High Court has today found that the process leading to the appointments of both Dido Harding and Mike Coupe were unlawful. It held that Matt Hancock broke the law in appointing Dido Harding as Chair of the National Institute for Health Protection (NIHP) and in appointing Mike Coupe as Director of Testing at Test and Trace (NHSTT). The High Court was also clear that the Prime Minister broke the law in appointing Dido Harding as Chair of Test and Trace.

The Court declared: “The Secretary of State for Health and Social Care did not comply with the public sector equality duty in relation to the decisions how to appoint Baroness Harding as Interim Executive Chair of the NIHP in August 2020 and Mr Coupe as Director of Testing for NHSTT in September 2020.” (paragraph 138 of the judgment)

While the formal declaration reflects only the appointments made by Matt Hancock, the High Court is clear that the process adopted by the Prime Minister was also unlawful (paragraph 116). All three appointments breached the public sector equality duty.

In reaching this conclusion, the Court accepted the argument made by race equality think tank the Runnymede Trust and Good Law Project that the recruitment process adopted by the Prime Minister and the Secretary of State ignored the need to eliminate discrimination against the country’s disabled and ethnic minority communities, and to ensure they have equality of opportunity.

In appointing the wife of Boris Johnson’s Anti-Corruption Tsar John Penrose MP to Chair the National Institute for Health Protection, the Government failed to consider the effects on those who, the data shows, are too often shut out of public life. The Government also ignored its own internal guidance, which requires Ministers to consider how discrimination law will be complied with. 

The Runnymede Trust and Good Law Project brought the case to highlight what it means to disadvantaged groups for the Government to push its associates and donors into key jobs. The Court’s declaration will have a real impact on how public appointments are made in the future. 

The Government must now take seriously its legal and moral obligations to narrow the disadvantages faced by people with disabilities and those of colour. Public appointments must not be made without taking steps to eliminate discrimination and to advance equality of opportunity, even when normal processes don’t apply, for instance during a public health emergency. The Government will now have to be much more careful to make sure its recruitment processes are fair, equitable and open to all. 

We would like to thank everyone who contributed to making this happen. 

Read the full judgment here. 

Our Judicial Review with the UK’s leading race equality charity Runnymede Trust over the Government’s practice of handing out important roles to their friends, without fair or open competition, reached the High Court this week. 

Our case focused on Dido Harding’s appointment, first as Chair of the disastrous Test and Trace programme, and then Head of the Health Security Agency, and her intervention to recruit her old colleague Mike Coupe to be Director of Testing. What they lacked in public health administration experience, they made up for in connections, with each being appointed directly after a closed recruitment process, or, in the case of Dido Harding’s second appointment, no recruitment process at all.  

But having the right contacts shouldn’t matter more than having the right credentials, particularly for critically important public jobs at the heart of the Government’s pandemic response.

Our barristers argued that if the Government routinely allows closed recruitment processes, if they only consider their personal, political or professional contacts, or those who can afford to work without pay, then they shut out many of the best available candidates, in particular those from ethnic minority backgrounds and those with disabilities. We believe their behaviour breached their duties under the Equality Act, and discriminates against people outside the ruling elite who lack networks to lean on. 

You only have to look at the Government’s own figures to see the impact: as the number of closed appointments has sharply increased over the last 18 months, the diversity of the ethnic minority candidates has fallen: from 15.3% before the pandemic to 9.6% in 2020-21. 

The Government’s barristers tried to argue that their actions were led by a need to have people in these posts as quickly as possible, but even their own civil servants described the recruitment process as “ludicrous”. An internal Government email reads: “I am worried that all of these appointments are being made on the fly without a proper audit trail around them.”

Our hearing revealed that Dido Harding inserted Mike Coupe on to a shortlist compiled by a recruitment agency, after they hadn’t recommended him for the role. He was the only candidate that Dido Harding then actually interviewed in person; and she kept no notes or records of her interviews or decision. Our view is that her conduct presented an obvious, and unlawful, appearance of bias. 

One of the most important benefits of open recruitment is the perception it creates that people can expect equality of opportunity and a fair chance of being considered for senior Government roles. Unfortunately, the reverse is also true. If hiring friends and acquaintances, simply because it’s easier, is seen as accepted practice, this further entrenches inequality and has a chilling effect on the diversity of candidates who will apply for future public appointments. 

This has been a difficult case to fight. Rather than work to improve their processes, or commit to transparency in public appointments in the future, the Government has fought us every step of the way. They seemed determined to obscure the true facts of the case. 

We should receive a ruling from the Court in the coming months. We will keep you updated. 

Tomorrow the High Court will hear Judicial Review proceedings brought by the Runnymede Trust and Good Law Project. We are challenging the Government’s appointment of senior public officials without any formal process – which has meant top jobs repeatedly going to friends and associates of the governing elite.

Appointing your pals to top roles certainly isn’t a new phenomenon. We remember only too well “Tony’s Cronies”. However, in this time of national crisis and after the deaths of almost 150,000 members of the public, it is high time that the best qualified people are appointed to run vital public bodies. 

Our case focuses on Conservative peer Dido Harding and Mike Coupe. In May 2020, Harding was appointed to chair Test and Trace. She was later named Head of the new UK Health Security Agency. In September 2020, her ex-colleague Coupe was appointed Director of Testing at Test and Trace. Neither Harding nor Coupe is medically trained. Neither has built a career in public administration – problematic shortcomings given their roles in a time of global pandemic. Not to mention the £37 billion failure that Test and Trace represents. 

Both were hired without advertisement or competition. 

Even in transparent and competitive recruitment processes, research shows that the risk of unconscious bias can result in the appointment of candidates in a recruiter’s own image, for example if applicants have Anglo-Saxon names. So without proper process there is a real risk that positions will disproportionately be offered to white, non-disabled personnel. Highly qualified but otherwise unconnected candidates, often from ethnic minority and working class backgrounds, risk being entirely overlooked. It’s hard to see how this is reconcilable with both equality principles and the expressed objective of the Government to “level up” society.  

Our ethnic minority communities have disproportionately suffered and died from Covid. It is reasonable to hope that senior public appointments, in response to this national emergency, could be led on the basis of capability and experience, and include someone with understanding and lived experience of those communities most impacted. 

We entered this Judicial Review at a time when health outcomes for minority ethnic groups were incredibly fragile as a result of Covid, and mechanisms for our communities to raise their concerns already felt limited. As these proceedings have progressed, we have become increasingly concerned to note the way in which Government’s costs have increased - and therefore raised our own costs risk.

The few avenues by which scrutiny can be placed on the Executive feel increasingly limited. Again, minorities suffer a disproportionate impact - the principle of holding the Government to account in the public interest in Britain must not be defined solely by the ability to pay.

The fact that the High Court has agreed to hear this case confirms that the points we have raised, as an equalities organisation, are serious and merit scrutiny. We hope our challenge will help uphold the word and spirit of equalities legislation around future public appointments. And that, in future, public bodies recruit appropriately, especially in a time of national emergency.

Thank you so much for your support.

Dr Halima Begum, Chief Executive of The Runnymede Trust

Government has hit us with a shock legal bill in our challenge with Runnymede over their appointment of Conservative Peer Dido Harding and her ex-colleague Mike Coupe to run the disastrous Test and Trace programme – without open competition. 

Legal action is expensive, so we don’t take it lightly. That’s why, back in March, we asked for Government’s costs estimate for defending this case. We said plainly and clearly that we were asking so we knew whether to apply for a costs cap (a Court order that would have ‘capped’ how much we’d have to pay Government if we don’t win). Government replied with reassurance that their costs ‘would be in the region of £35,000 to £50,000’ and, in reliance on that, we did not seek a costs cap. 

A couple of months later, they wrote to say their expected costs would actually be closer to £150,000. While this was an alarming three times more than their initial estimate, it felt just about manageable so we pressed on.

But now, out of nowhere and with only weeks until our High Court hearing, they have increased their estimated costs again – to a whopping £360,000 – with a barely credible explanation. By way of comparison, our lawyers’ bill is estimated at £70,000 if we lose, and £175,000 if we win. Government’s approach feels very much like a ‘bait and switch’.

It’s now too late for us to apply for a costs cap, and we’re facing an enormous potential bill if we do not win in Court – seven times higher than Government’s original estimate. This means we’re still more than £200,000 off the sum needed to cover our adverse costs risk in this case. But we aren’t prepared to down tools. 

This Government’s approach to public appointments discriminates against those who aren’t born with a silver spoon in their mouths. The principle at stake – that Government must appoint the best candidate, not its best friend – is incredibly important. If we don’t defend this, we don’t see who else can. 

The hearing is due to take place in the High Court on 14 and 15 December. 

Thank you for your support.

It’s been a while since you heard from us in our ‘Jobs for the Boys’ case so we wanted to give you an update. As you’ll remember the case focused on the appointments of Dido Harding - wife of a Conservative MP and friend of David Cameron - first as Head of Test and Trace and then later as Head of the National Institute for Health Protection without any adequate process. Later in the process we asked about Kate Bingham and Mike Coupe.

We continue to await a hearing date from the High Court - but we have had an explanation from Government of the process that was followed for Kate Bingham to be appointed. That process was less poor than Government had previously led us to understand and so we will not challenge her appointment. 

We are, however, continuing with the challenges to Dido Harding and Mike Coupe where, we believe, the evidence demonstrates that the processes were unacceptably poor. You may also think the outcomes were not much better - and you would expect poor processes to deliver poor outcomes. 

Make no mistake, the case is not straightforward. It is also made more difficult by the political climate.

Very few civil society organisations have the freedom our grassroots funding model gives us. Fewer still can afford to be indifferent to the attacks of a Government that is increasingly intolerant of challenge. Understandably many cannot afford to put their heads above the parapet in support of this litigation for fear of Government, or its increasingly partisan regulators, shooting them off. 

But we have arranged ourselves, as an organisation, so we have that freedom. And we think the principle at stake - that Government must appoint the best candidate, not its best friend - is incredibly important. If we don’t assert the principle we don’t see anyone else who can. 

So we propose to proceed with our attempt to clarify that the law requires Government to appoint based on merit - not on handshakes and private connections. 

We are pleased to announce that our judicial review with Runnymede over the Government’s practice of handing public sector jobs to its mates without open recruitment has been granted permission. We will have our day in Court.

The story we tell ourselves is that these things don’t happen here. That the handing out of important roles to friends, without competition, is something for abroad. But the pandemic has exposed that as a fairytale. In the real world, we are now a “chumocracy” where having the right friends matters as much or more than having the right skills.

Since the start of the pandemic, Government has created a number of new bodies whose leaders fall outside the usual public appointment regime. Many of the roles have gone to those personally connected to the Conservative Party. 

The most high profile was the appointment of Dido Harding as Chair of NHS Test and Trace. A sitting Conservative Peer, wife of a Conservative MP and friend of former Prime Minister David Cameron, Harding didn’t pip other candidates to the post at the interview. There were no other candidates. The Test and Trace programme – with a budget of a staggering £37bn – has consistently failed to meet its targets and is widely and rightly perceived as a disaster.

Harding is far from the only friend of the Conservative Party to land a top public sector job. Kate Bingham, wife of Tory MP and Treasury Minister, Jesse Norman and cousin by marriage of Rachel Johnson, was appointed Chair of the Vaccine Taskforce. The vaccine programme is a success but that no more vindicates the chumocracy than Harding’s failure damns it. 

The principle – that we should be appointing on the basis of talent rather than relationships – remains the same. Our public bodies perform vital functions. They must always be run by the people who are best placed to do the job. In response to our lawyers’ correspondence asking Ministers to reveal how and why certain individuals, including Harding, were chosen to lead vital public health bodies, Government has admitted the roles were not openly advertised. 

It’s hard to put it better than the Commissioner for Public Appointments: “… some at the centre of government want not only to have the final say but to tilt the competition system in their favour to appoint their allies…”

This is not the Britain we should be.

We will publish the date for our High Court hearing as soon as it is available.

On Thursday 10th December, Good Law Project is hosting a live panel discussion on our challenge over Dido Harding’s appointment as Head of Test & Trace and Government’s practice of parachuting mates into top public sector roles without any open or fair process.

Thousands of lives depend on these public bodies. Yet this Government has handed them over without competition to cronies who’ve channelled billions of taxpayers’ money to private companies and their associates, while Test and Trace fails. It discriminates against those who don’t rub shoulders with Conservative ministers - and we don’t believe it is lawful.

If you would like to find more about the case and the extraordinary material we have unearthed so far, watch our live panel discussion with speakers including: Jolyon Maugham, Director of Good Law Project, Clive Lewis MP for Norwich South, and Dr Halima Begum, Director of The Runnymede Trust, the co-claimants in the case.

Here are the details of the event:

When:  6PM - 7PM, Thursday 10th December

Where: Facebook and Twitter

RSVP: on Eventbrite now for your free ticket

You don’t need to download anything to watch the event - just log on to our Facebook or Twitter at 6pm. If you have questions for our panellists you can send them in advance.

For a flavour of what’s in store listen to Jolyon on the Stories of Our Times podcast, on how we are paying the price as Ministers cast transparency rules aside.

Thank you for your support. We hope to see you on the 10th.

Good Law Project Team