Is the Good Law Project...Good?
Last week the High Court came to the following conclusion in the case of R (Good Law Project & Runnymede Trust) v The Prime Minister & Secretary of State for Health):
“The Secretary of State for Health and Social Care did not comply with the Public Sector Equality Duty in section 149 of the Equality Act 2010 in relation to the decisions on how to appoint (i) Baroness Harding as Interim Chair of the National Institute of Health Protection in August 2020 and (ii) Mike Coupe as Director of Testing for NHS Test and Trace in September 2020.”
So a landmark decision against the government, then?
Well, not quite because the aftermath of the judgment turned into a public relations battle between the Good Law Project (GLP) and its critics.
In their email to supporters the GLP claimed to have ‘won’ the case but, as many were quick to point out, that was not exactly accurate. In paragraph 126 of the judgment it was held:
“The collective effect of the conclusions set out during this judgment is that the claim brought by Good Law Project fails in its entirety.”
So who was right?
Well both of the following statements are true:
The process involved in the appointment of Dido Harding and Mike Coupe was unlawful.
The GLP claim failed and the case was only partially successful because of the claim brought by the Runnymede Trust.
Jolyon Maugham is the figurehead of GLP and apologised for falsely claiming victory. That apology was quickly seized upon by the former Health Secretary, Matt Hancock:
From this spat there emerged a more existential debate about the GLP and whether it is doing a public good by challenging the government or if it is more of a nuisance litigant.
Another way to ask this question is: what is ‘good law’?
Most people probably have an idea in their head about what good law is: a legal system that is defined by clarity and certainty; upheld by the rule of law. However, like other concepts such as ‘natural justice’, the more that you dig into the idea with someone, the more subjective it becomes and based on their personal outlook.
GLP claims that it “uses the law to protect the interests of the public” and that is a noble ideal but a non-profit organisation that relies on judicial review was always going to be seen as political. The same party has been in power in the UK for more than a decade at this point and that, alongside a healthy majority, brings a degree of comfort and complacency amongst those in power. As ministers push the boundaries of what is allowed, they will become more and more frustrated when others start to push back.
There are legitimate questions to ask when these cases arise: who should have the ability to bring judicial review claims in the first place? why has the law not been drafted in a way that offers more certainty? Nevertheless the GLP has a phenomenal track record and this poses more serious questions about the nature of our democracy: why are ministers so lax in terms of their responsibilities? why is this calling to account only taking place in the courts rather than in Parliament or from journalists?
Their quasi-political existence means that the GLP necessarily splits public opinion but there is one final question to consider: would the Good Law Project have such a high profile or be considered such a nuisance if the government acted honestly?
This week in the podcast we look at the first ever leapfrog appeal from the Upper Tribunal to the Supreme Court. Proceedings can only skip over the Court of Appeal in very limited circumstances and we consider if that is a good thing or not in the episode.
Episode link: https://uklawweekly.com/2022-uksc-1/
Make a difference today,
Marcus