“I ask you to judge me by the enemies I have made”. No, not Ukraine’s remarkable President Zelenskyy, fitting though it would seem. It’s generally attributed to the rather longer-serving US President Franklin D Roosevelt, an at least equally appropriate author for this column’s political theme.
But who in the last fortnight’s UK politics might have prompted FDR’s “judge me by my enemies” thought? Well, it wasn’t exactly a ‘who’. Rather, a smallish, youngish, not-for-profit campaigning organisation doing its best to challenge abuses of power, inequality and injustice, mostly by Government departments and Ministers, in cases bigger, better-funded organisations hesitate to take on.
And they do have an appealing name – the Good Law Project (GLP). Which is fortunate, since appealing is how they’re largely funded – through donations and periodic crowd-funded contributions to cover specific cases, as in this instance.
In a few short years, dominated by our EU exit and Covid, they’ve also racked up a pretty appealing court record, unless of course you view it as, say, a recent or current Government minister.
You’ll recall that Boris Johnson, within weeks of becoming PM in July 2019, ‘advised’ the Queen to prorogue/shut down Parliament for an unprecedented five weeks, thereby avoiding further parliamentary scrutiny of the already thrice-defeated Brexit withdrawal agreement, and enabling the UK potentially to leave the EU on October 31st without a deal.
The Queen had little constitutional option but to accede. Others, though, did. The GLP crowd-funded an appeal, sufficient to allow lawyers to petition first the Scottish Appeal Court, then the UK Supreme Court. You can maybe even re-picture the historic, televised, unanimous 11-judge ruling, delivered by the UoB Vice-Chancellor’s most recent Distinguished Lecturer, the Supreme Court’s spider-brooched President, Lady Hale.
Johnson’s prorogation advice to the Queen “was outside the powers of the PM”, Parliament’s suspension unlawful and unconstitutional, and it should be immediately reconvened. Score: UK Government 0, GLP several.
Then came Covid, bringing with it what was quickly tagged ‘institutionalised cronyism’, with Health Secretary Matt Hancock and Cabinet Office Minister Michael Gove the biggest serial offenders.
The GLP could have chosen numerous cases, but selected three PPE (Personal Protective Equipment) contracts as illustrations: £252m to a finance company for face masks, £108m to a confectionery products agency, and £345m to a company trading as Pestfix – which, as we’ll see, is what the grudge-bearing Hancock would still dearly love to do to the GLP.
The otherwise defenceless Health Secretary – the man who broke his own social distancing guidelines in his own office – resorted to disputing GLP’s legal standing. The high court judge ruled, however, that he had acted unlawfully in respect of “vast quantities” of taxpayers’ money in failing to publish multibillion pound contracts within the legally required 30 days.
Cabinet Office Minister Michael Gove also had cronies. Ministers in those early Covid days needed to influence public opinion, and get focus group feedback on the effectiveness of their messaging. Unfortunately, neither Gove nor anyone in the entire civil service could think of an experienced polling company.
Luckily, though, the PM’s Chief Adviser, Dominic Cummings, knew a ‘communications agency’, Public First, run by chance by some friends. Time, regrettably, was far too short for advertising or competitive tendering, so Public First got the eventual £840,000 ‘no-tender’ contract. Job done.
What was fast becoming almost standard ministerial practice was a gift for the GLP, and they set about proving Gove too had broken the law.
In June 2021 the High Court finally agreed. It rejected Gove’s bluster that no one else could possibly do the job, ruling that any “reasonable observer” – the legal test – would reckon it was Public First’s relationships with Cummings and Gove that secured the contract. The minister had indeed broken the law … and the GLP had acquired another ministerial enemy. And no, Gove didn’t resign either.
Time for a statement of the obvious. The GLP don’t always win, as we’ll see. They deliberately select tough cases that big, established law firms decline. They raise funding case-by-case. Considering which, their record is impressive: in 2021, “four judgements, four wins”.
Then came Tuesday Feb.15th. Notwithstanding Ukraine and the Duke of York, most media found room for reports variously headlined: “Ex-Health Secretary Matt Hancock broke/ignored/did not comply with equality laws/rules/duty over Covid appointments”.
In a case brought jointly by the UK’s leading independent equality thinktank, the Runnymede Trust, and the GLP, two High Court judges ruled that “the UK government failed to comply with equality law” when appointing Baroness Dido Harding as Chair of the National Institute for Health Protection and Mr Mike Coupe as Director of Testing at Test and Trace.
Specifically, the “then Health Secretary Matt Hancock did not uphold a public sector duty to promote equality when hiring officials.”
It sounds clear and crushing enough, and it was. However, that part of the judges’ verdict was in effect directed only at the Runnymede Trust, who had what is known as the standing and entitlement to bring the case. The judges deemed the GLF not to have such ‘standing’ – now or, by implication, were likely to have any time soon.
Still, does that verdict sound to you like an ex-Minister’s judicial triumph? It apparently did to him! Read to the end of the Guardian report, and you’ll see he went on instant attack, in a way that readers must have found, if not confusing, then surely bemusing, or simply desperate.
“We’re delighted the department has won yet another court case against the discredited Good Law Project. Claims of ‘apparent bias’ and ‘indirect discrimination’ have been quashed and thrown out by the high court.” Which, of course, they weren’t.
“What the judgment does make clear is that ‘the claim brought by Good Law Project fails in its entirety’, therefore highlighting the fact this group continues to waste the court’s time.”
Back, then, to President Roosevelt. Last week was undoubtedly a setback for the GLP. But the instant glee and hauteur with which the court’s ruling was received by Hancock and some of its other critics suggest that, given its record and support, it is unlikely to prove the “existential blow” they apparently crave.
And on the FDR scale – “Judge us by the enemies we’ve made” – they’re still doing pretty well.
Chris Game is an INLOGOV Associate, and Visiting Professor at Kwansei Gakuin University, Osaka, Japan. He is joint-author (with Professor David Wilson) of the successive editions of Local Government in the United Kingdom, and a regular columnist for The Birmingham Post.
This blog was originally published in the Birmingham Post, March 3-9, entitled ‘Campaign group proud to be judged by its enemies’