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We have written about the Good Law Project before. Last year, for example, an article by our editor was cited as evidence in one of their (many) cases. In 2020, we looked at how the Government tripped itself up over expanding Heathrow, following another case in which the GLP was involved.

As we noted in that piece, the expanding role of the courts in policymaking is not solely the fault of ‘activist lawyers’. Much of the blame rests with politicians, breezily insisting that their successors must “have regard to” this or that, creating a vague obligation it is up to the judges to enforce.

Nonetheless, Jolyon Maugham and the GLP are undoubtedly enthusiasts for the trend, pursuing an energetic campaign of litigation against the Government and funding it with appeals for public donations. This week, a ruling from the High Court has put that model in some jeopardy.

One wouldn’t think it to look at the GLP’s own output. After all, the ruling declared that the Secretary of State breached a public sector equality duty when appointing Dido Harding and Mike Coupe, the head of Test and Trace.

In their publicity, Maugham’s outfit claim that: “In reaching this conclusion, the Court accepted the argument made by race equality think tank the Runnymede Trust and Good Law Project”. But let’s have a look at the judgment itself, specifically paragraph 126:

“The collective effect of the conclusions set out during this judgment is that the claim brought by Good Law Project fails in its entirety. The claim by the Runnymede Trust
fails on Grounds 1 and 3; it succeeds on Ground 2 only to the extent that the decisions on the process to be used when appointing to the positions of Interim Chair of NIHP in
August 2020, and Director of Testing at NHSTT in September 2020 were made without compliance with the public sector equality duty.” (Our emphasis.)

Isn’t that curious? It certainly seems difficult to trace a plausible route from that to the GLP’s claim that the Court accepted its arguments, which might give potential donors a misleading impression about the group’s efficacy.

Nor is this the only area where some suggest the GLP is misrepresenting the case. Barbara Rich, a barrister, points out that one of its directors was trying to claim that the Prime Minister “broke the law”, when in fact the court found he played no role in the appointments. Here’s the judgment again, paragraph 135:

“On behalf of the Defendants, it is first submitted that no remedy should be granted as against the first Defendant, the Prime Minister, since it is clear on the facts as found by this Court that he played no part in the two appointments which are under consideration: the appointments of Baroness Harding in August 2020 and Mr Coupe in September 2020. 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.”

(On the same theme: in their official response, the GLP refer to Dido Harding as “the wife of Boris Johnson’s Anti-Corruption Tsar John Penrose MP”, alluding to their allegation that “personal or political connections with the decision-maker” played a role in the appointment. What did the judges think? “The evidence provides no support for this at all.” (Par 95).)

The idea that the GLP might, for all its pretensions, be a grubby political operation will probably not come as a surprise to many readers. And if it is misrepresenting its track record, that does raise interesting questions about the law governing crowd-funding.

But the ruling also poses a more direct danger to their entire model. In parts 55-59, the court takes a cold, hard look at the question of whether or not the GLP actually has the ‘standing’ that would allow it to even bring a suit – and concludes that “the Runnymede Trust has standing to bring the public sector equality duty challenge, but the Good Law Project does not.” (Par 59.)

In the course of so doing, the judges explicitly attack the idea that any individual or private company, “even with a sincere interest in public law issues, would be regarded as
having standing in all cases” (par 57), and state that “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.” (Par 58).

Yet that is, at root, precisely its modus operandi. If Maugham and co can’t keep finding legitimate litigants to piggyback on, their ability to keep generating even defeats to spin might be in serious doubt.