High Court judges have found the government’s appointments of Conservative peer Baroness Dido Harding and former Sainsbury’s chief executive Mike Coupe to lead core elements of the Covid-19 response were unlawful because they breached the public sector equality duty.
Today’s decision follows a judicial review brought by campaign group the Good Law Project and charity the Runnymede Trust of Harding’s 2020 selection as chair of the National Institute for Health Protection – which later became the UK Health Security Agency – and Coupe’s hiring as NHS Test and Trace director of testing.
Backed by the FDA civil service union, the challenge argued the pair had been recruited through the use of closed practices that “ignored the need to eliminate discrimination against the country’s disabled and ethnic minority communities, and to ensure they have equality of opportunity”.
Lord Justice Singh and Mr Justice Swift agreed the selection process for Harding and Coupe had breached the public sector equality duty, under section 149 of the Equality Act 2010. However, they dismissed arguments about the government's failure to use an open recruitment process.
The Good Law Project said while the High Court’s formal declaration only reflected appointments made by then-health secretary Matt Hancock, judges were also “clear that the prime minister broke the law in appointing Dido Harding as chair of test and trace”.
The Good Law Project and Runnymede Trust, which campaigns on race-equality issues, originally included Dame Kate Bingham’s appointment as UK Vaccine Taskforce chair in the case. However, she was dropped from the challenge after the government was able to demonstrate the recruitment process used to recruit her had been more robust than that used for Harding and Coupe.
The Good Law Project said the High Court’s decision showed the government had to take its legal and moral obligations to narrow the disadvantages faced by people of colour and disabled people seriously.
“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,” it said in a statement.
“The government will now have to be much more careful to make sure its recruitment processes are fair, equitable and open to all.”
Runnymede Trust chief executive Halima Begum and chair Sir Clive Jones said disabled, black and ethnic-minority citizens had been disproportionately affected by Covid-19 and the judgement sent a strong message to the government about its obligations.
“It seemed logical and indeed imperative that those appointed to help lead the nation out of the pandemic were the best candidates for the job or, at a bare minimum, extensively experienced and fully qualified in the area of public health,” they said in a joint statement.
“Neither Baroness Harding nor Mr Coupe is medically trained. Neither has a lifetime of public administration under their belt.
"It should not be acceptable to drop our standards during complex health emergencies when countless lives are at stake, in particular the lives of some of our country’s most vulnerable citizens.
"This is when the rule of law most needs to be upheld. This is why the rule of law exists.”
Harding’s 2020 appointments raised numerous questions because of her role as a politician and her non-civil service status, even when in post. Her career background was also in telecommunications, rather than in healthcare.
Harding’s appointment, along with that of Bingham and Coupe, also raised questions about the extent to which longstanding friendships and marriages were playing a role in government’s selection processes for some roles – sometimes dubbed a “chumocracy”.
Bingham is married to MP and former financial secretary to the Treasury Jesse Norman, who was an Eton contemporary of Boris Johnson and former PM David Cameron. Conservative peer Harding is married to MP John Penrose – currently Johnson’s anti-corruption champion. Coupe, meanwhile, is said to be a close friend of Harding.
A government spokesperson said that key elements of the original challenge had been dismissed by the High Court and that only one of the Runnymede Trust’s grounds of challenge had been successful.
“The judgment is clear that all claims raised by the Good Law Project were dismissed and the ruling itself stated their claim ‘fails in its entirety’,” the spokesperson said.
“The court also found that the Good Law Project had no standing to bring any of its grounds of challenge.
“We used the skills and expertise of both the public and private sector to rapidly build a world-leading testing infrastructure, speeding up the delivery of tests and ultimately saving more lives, especially amongst the most vulnerable.”
This story was updated at 17:30 on 15 February 2022 to include a government response