Academic Research Public Law

Controlling abuse of power in the UK Constitution: the futility of judicial review

Dr Steve Foster, examines the limitations to judicial review in light of the ‘Good Law Project’ case.

R (Good Law Project) v Secretary of State for Health and Social Care [2022] EWHC 46 (TCC); R. (on the application of the FDA) v Prime Minister and Minister of the Civil Service [2021] EWHC 3279 (Admin)

In a previous blog, we examined the High Court decision in FDA, where it was held that the Prime Minister had not misinterpreted a Ministerial Code when deciding not to sanction the Home Secretary for alleged bullying.  Judicial review is primarily concerned with the legality of the act (whether the power has been interpreted correctly) rather than its merits (whether the PM should have sanctioned the Minister for what may saw as bullying). This preserves the separation of powers, and another example was witnessed on 12 January 2022, in the Good Law Project case.

In this case, it was held that the operation of a high priority lane – whereby suppliers of PPE referred by Ministers, MPs and senior officials were afforded more favourable treatment for the supply of personal protective equipment – was in breach of the obligation of equal treatment under the Public Contracts Regulations 2015.  However, the Court then found that even if two such suppliers had not been allocated to the high priority lane, it was highly likely that they still would have been awarded contracts. Accordingly, although the operation of the lane was unlawful, as it was highly likely that the outcome would not be substantially different and the contracts would have been awarded to them, the court refused to grant declaratory relief.

As with the FDA case, the Court regarded the matter as justiciable because it involved the allocation of contracts under public law – in this case the 2015 regulations. Such regulations have to be interpreted (and, specifically in this case, applied) in a lawful manner, and as the regulations imposed a duty of equal treatment in the allocation of public contracts, the creation of a priority lane to favour certain companies was unlawful. Thus although the PM had put in place selection criteria so that the offers could be properly evaluated, the operation of the lane was in breach of the obligation of equal treatment.

So what does this tell us about judicial review and its worth? In FDA, because of the peculiar nature of the code and its source, the Court could not intervene to decide whether the code had actually been violated, or what sanction the PM could or should impose. In the present case, the Court was able to intervene on both aspects, but because it was satisfied that the contracts would have been allocated in any case, it was unwilling to declare the allocation of the contracts as unlawful.  The Court is not refusing to intervene because it is a (mainly) excluded matter, but because it has examined the evidence, and decided that the PM had acted properly, despite acting under an unlawful policy that he had created. This is a dangerous approach, not only constitutionally (are the courts placed to make this judgment?), but also in terms of excusing clear breaches of the law and procedure. Further, the Court ignores evidence of the execution of those contracts, where there were numerous allegations that the equipment provided by these suppliers was defective.

The case also illustrates the limits to judicial review. In FDA, the Court cannot get to the truth of whether the PM was always going to support the Home Secretary whatever interpretation he gave to the Code. Similarly, here, the Court does (and perhaps cannot) consider the political allegations that allocation was made based on ‘jobs for the PM’s mates.’ Those matters, as with the questions of what is a party, and whether you went to it, is left to political and public debate.

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