There seems to be a degree of confusion that surrounds some court cases these days. Sadly this has proven true of the latest case by the Good Law Project, which has challenged the hiring of Dido Harding as chair of Test and Trace in the courts. This afternoon the High Court released its judgment on the case.
First some were confused that the decision represented a ‘blow’ against the Prime Minister. It did not. The court stated clearly that the PM was wrongly sued. In paragraph 135 it said:
‘We agree and indeed it appears to be common ground that only the Secretary of State is the relevant Defendant for the purpose of any remedy to be granted’ – which means the PM should not have been sued.
Next there was some confusion that the Good Law Project had ‘won’. It had not. Every claim brought by the GLP failed. The court I suspect did not want anyone to be so confused, so it stated that expressly in paragraph 126. There is very little ambiguity in the words ‘the claim brought by Good Law Project fails in its entirety.’
Runnymede, a charity but not the GLP, ensured the court found that two appointments were made without compliance with the public sector equality duty.
All well and good people might think? Part of the rough and tumble of politics?
The problem is this masks a fundamental blow to the GLP. This blow raises serious questions over whether or not it can even continue. The problem is contained in what can for some be odd legal language, the word ‘standing’.
Standing is what you need to bring a case. If you haven’t got it – you can’t sue. If you get run over by a tractor, I can’t sue the farmer – because I didn’t get hit, you did. That’s an easy question about standing.
A harder one is raised by organisations or groups. When can they have standing? Well, often by saying they have standing based on the issues that interest them – which is where things get tricky.
Beginning in paragraph 55 the court turned its full attention to what the Good Law Project is, and whether or not it has standing.
We have had hints of this as an issue before. But this is the first time I believe the court has addressed it. The court notes that the GLP tries to draw its objectives very widely, so as to try to have standing against any public body which makes an error of public law. But the court rejected this completely in paragraph 57:
“‘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.’
The court concludes in paragraph 58:
“‘It cannot be supposed that the GLP now has carte blanche to bring any claim for judicial review no matter what the issues and no matter what the circumstances.’
The problem is that this is an existential issue for the GLP. Its whole point is that it can sue anyone it chooses over any error of public law. But that has now been rejected by the court. Crucially it raises money on the basis it can sue over any error. That caused at least one well respected legal academic to ask whether it is time that those who donate are told?