Boris Johnson and his health secretary, Matt Hancock, acted “unlawfully” when appointing three key figures – including the head of NHS Test and Trace, Dido Harding – to posts in the fight against Covid-19, according to a legal challenge submitted by campaigners to the high court.
The Observer has seen details of documents from those pursuing the case – and initial responses from government lawyers – relating to the call for a judicial review into the appointment of Baroness Harding, who is a Tory peer, and into those of Kate Bingham to the post of head of the UK’s vaccine taskforce and Mike Coupe to the role of director of testing at NHS Test and Trace.
The case has been lodged jointly by the not-for-profit Good Law Project headed by Jolyon Maugham QC, and the UK’s leading race equality thinktank, the Runnymede Trust. If it is successful, it would represent a further serious blow to the credibility of the government’s handling of the pandemic and support claims that ministers have been running a “chumocracy”. The claimants say the appointments were made without advertising the positions, and without the open competition normally insisted on for important public sector roles. Instead they suggest those identified and then appointed were installed in part because of their Tory connections. Harding and Bingham are both married to Conservative MPs while Coupe is a former chief executive of Sainsbury’s, and was a colleague of Harding’s at the supermarket. The claimants question the experience and suitability of the three to carry out the roles and also say that because the positions were not advertised and are unpaid, the government was guilty of indirectly discriminating against others outside the very well-off, predominantly white group from which the three were chosen. They also say the government breached equality obligations for public sector appointments. In relation to Harding’s appointment by Hancock in May to head the test and trace programme, the claimants say her experience “was not such that it was obvious without a selection process that she was uniquely qualified for the role”. Hancock and Harding already knew each other, partly through horse racing connections. Harding was appointed to a second role in September as head of the National Institute for Health Protection, again without an open competition or the role being advertised.
The claimants say Bingham, who has worked in the fields of venture capital and therapeutics, and was at school with the prime minister’s sister, Rachel, “has no experience of public health administration and no expertise in immunology”. Her husband, Jesse Norman, is a Tory minister and was a contemporary of the prime minister’s at Eton. Referring to Coupe’s appointment the claimants say: “Mr Coupe’s most significant professional experience is as the former CEO of Sainsbury’s. He has no experience as a public administrator or in the health sector. He is a former colleague and friend of Baroness Harding, who worked with him at Sainsbury’s.” The claimants are inviting the court to declare that the government acted “unlawfully” in the way it made the appointments. They are not seeking to remove the three from their posts, which they accept would be disruptive at a time of crisis, but to ensure that in future governments are bound to act fairly and lawfully. Another 341 people in the UK died of Covid-19 on Saturday, and 19,875 new cases were recorded. News of the legal challenge comes as Johnson prepares to outline to parliament on Monday details of the restrictions that will apply after the lockdown in England ends on 2 December. He will hold discussions with his cabinet on Sunday to finalise the details of extra restrictions that will have to apply in the worst-hit areas, and how rules can be loosened for a few days over Christmas. Sources said the three-tier system would remain, although with extra restrictions imposed where necessary. Johnson may have to rely on support from Labour when the new restrictions are voted on. It is understood 70 Tory MPs have signed a letter warning they cannot support a return to a tiered system unless ministers can demonstrate measures “will save more lives than they cost”. The group, led by former chief whip Mark Harper and former Brexit minister Steve Baker, are demanding to see a full cost-benefit analysis of the restrictions being proposed after the current national lockdown ends.
A pre-action letter outlining the details of Good Law Project’s case has been sent to Johnson and Hancock. The government legal department has responded by defending all the appointments, saying the urgency of the pandemic necessitated swift, ad hoc and temporary appointments. The legal department said they were not civil service roles so fell outside the requirements for full and open competition, and praised the administrative abilities and experience of those chosen. It also dismissed the claims of indirect discrimination as baseless, saying the claimants had failed to say precisely who had been discriminated against. The government’s lawyers say the case is “unnecessary and will soon be academic”. Dr Halima Begum, director of the Runnymede Trust, said in her submission: “Corners must not be cut to the point where the government is discriminating against non-white and/or disabled people. Qualified individuals should all have an equal opportunity to compete for these vital jobs, no matter their background. They should also be able to afford to accept these jobs while supporting themselves and their families. “Dispensing with open competition and failing to remunerate full-time positions builds a perception that important jobs are being given to an inner circle of wives and friends within Westminster. This is what people increasingly call the ‘chumocracy’.” Dave Penman, head of the civil servants’ union the FDA, said: “Ensuring civil servants are recruited on merit is not only a legal obligation on the government, it is critical in ensuring the effectiveness of public services and protects the civil service from cronyism and corruption. It ensures that from local jobcentres to ministerial private offices, civil servants are recruited for what they can do, not who they know or what they believe.” Maugham said: “If our politicians care in the slightest about public trust, we need to get back to how things used to be. Public service needs to be exactly that – not a cloak for the advancement of private interests.” Good Law Project is also pursuing allegations that Covid-19-related contracts have been awarded to people with close Tory connections. Last week Julia Lopez, a Cabinet Office minister, said an internal review would be held into the awarding of private contracts during the pandemic, so ministers could be sure there was “no basis” for claims of favouritism towards Tory supporters or donors. The National Audit Office is also carrying out its own review into procurement. A spokesman for No 10 said: “We do not comment on ongoing legal proceedings.” • Footnote added 15 August 2021: in June 2021, the Good Law Project dropped its legal challenge to the government’s recruitment of Kate Bingham as chair of the vaccines taskforce.