On 7 May, when the country was still in its first national lockdown and the crisis over shortages of personal protective equipment (PPE) was its height, a Tory peer called Dido Harding was thrust suddenly to the centre of the fight against Covid-19.
Harding was well known in the business community and, partly thanks to her marriage to Conservative MP John Penrose, in top Tory circles too. But her professional reputation had little to do with any great medical knowledge. Since 2017 she had been chair of NHS Improvement, a management post overseeing foundation trusts, but her career heights were as boss at the telecoms firm TalkTalk, and before that she had been in senior roles at the supermarket chains Sainsbury’s and Tesco.
Matt Hancock, the health secretary, knew Harding, however, and shared an interest in horse racing with her. She was also a good friend of former prime minister David Cameron.
With the Covid crisis raging, there was little time to waste. Because of her management abilities and as she was available and willing to serve, Hancock placed her in charge of England’s new Covid-19 NHS test-and-trace system without putting the unpaid position out to open competition.
If Harding’s appointment in May raised some eyebrows at that time, more concerns were expressed in August when, under fire over the performance of the service, she was also appointed to lead the new health body the National Institute for Health Protection (NIHP), which was to be formed as result of a merger between Public Health England and NHS test and trace. Again there was no open competition, as is required in most high-ranking public appointments.
Dr Michael Head, a senior research fellow in global health at the University of Southampton, said at the time that the second Harding appointment “makes about as much sense as [chief medical officer] Chris Whitty being appointed the Vodafone head of branding and corporate image”.
Harding was not the only one, however. Her arrival was the first of many from well connected Tory circles into senior, unpaid Covid positions. The businesswoman Kate Bingham, who is married to Tory minister Jesse Norman, was appointed as head of the UK’s vaccine taskforce, a little later in May. Again some questioned why someone without apparent experience of vaccines – she had worked a lot in therapeutics – had got the job, which, again, was not put out to open competition.
Then in September a former work colleague of Harding’s, Mike Coupe (a former chief executive of Sainsbury’s), was appointed director of testing at NHS test and trace, again without apparent experience in the field, and without the job going out to full competition.
Last week the not-for-profit Good Law Project (GLP), which has highlighted the separate issue of Tory links to companies winning Covid contracts, lodged a case for a judicial review of the appointments of Harding, Bingham and Coupe.
It is trying to show that the appointments were made illegally, as they were not put out to open competition but were the result of contacts in a small Tory clique which signed one another up in a great hurry to top national jobs at a time of grave emergency.
The GLP is not trying to get rid of these three individuals from their jobs. But it is trying to shine a light on what it sees as a cosy network which has given vital roles to its own, apparently ignored due process and discriminated against the less well connected in so doing.
It is part of a wider battle that has developed around the Covid-19 crisis, which is all to do with how those with connections to power in a time of national emergency have somehow managed to feed off it, while others without them have been left out of the picture.
The five crucial issues that must be tested
Were fair and open competitions held for each of these jobs in line with rules on public appointments? Or did the prime minister and health secretary just appoint their chums in a hurry?
The claimants argue in papers submitted to court that “none of these appointments were subject to open competition” as they should have been. Instead it was a case of handing out posts to close acquaintances. Jolyon Maugham, founder of the Good Law Project, says in his submission that the system for making public appointments is set out by the government in its Governance Code for Public Appointments. This makes clear that, whenever possible, roles should be advertised and opened up to all comers. But with these appointments, he argues, this did not happen.
The government does not dispute this in the case of Harding, who was appointed by Hancock, although it says in the case of Coupe that unnamed headhunters were used.
In its response to the claimants’ pre-action letter, the government’s legal department stresses the “urgent”, “ad hoc” and temporary nature of the appointments which it says had been made necessary by the pandemic. It also points out that those appointed were available to fill crucial posts at short notice and to work unpaid in the public interest.
Were these appointments political?
The claimants note in their submissions that “Ms Bingham and Ms Harding are both the wives of senior Conservative politicians, with no significant experience in public health administration. They appear to have been recruited via informal phone calls from ministers. Mr Coupe is a former colleague of Ms Harding, with a background in running a large grocery business.” Also, and controversially, they note that Harding still sits as a Conservative peer in the House of Lords while holding what is, in effect (if not strictly) a civil service post. Government lawyers, in their pre-action response, stress the high levels of management qualifications of those appointed and their willingness to carry out the important roles at short notice.
Did the government act in a way that was discriminatory?
This is the crux of the claimants’ case on the legality of the appointments. They are inviting the court to find that the government acted “unlawfully”. In their main submission, they state that the process of appointing people to posts without open competition – but among a tight group of acquaintances – discriminates against people outside those groups, and in particular against those “who are not white people and who are disabled”.
“Potential candidates with these characteristics were less likely to be among the exclusive group considered for the positions. They were also less likely to be able to accept an unremunerated position. This exclusionary effect was not objectively justified. While there was, no doubt, some urgency to the appointments, they were not overnight, no-notice appointments.” They also say the way the appointments were made ran contrary to the obligation on government to observe the “equality duty” in making public sector appointments.
The government’s lawyers dismiss the claims of discrimination on several grounds, saying “you have not identified with any degree of particularity the protected characteristics that you claim are at a particular disadvantage other than a bald assertion that ‘candidates who are not white or who have disabilities are less likely to be among those considered for the position’. Plainly. each role needs to be approached separately and the particular pool and protected characteristics identified.”
Did the nature of the emergency justify the way the appointments were made?
The claimants say that in the case of Bingham there was no time pressure, yet still the government avoided open competition for the post. They say: “There does not seem to have been any open or competitive appointment process for her role either. The appointment came months into the global race for a vaccine. There is no obvious reason why the government did not have time between January and May to run or commission some form of open competition to appoint a person to lead the government’s efforts on the vaccine.” The government responds by saying the emergency justified its actions. “If any fault can be found with the process that was followed, it can undoubtedly be justified. The Covid-19 pandemic presents truly exceptional circumstances where the government has had to respond, with almost unprecedented speed, to a national emergency which threatens the health of the nation. It has properly and justifiably made urgent temporary appointments of highly qualified and specialised individuals to roles which are helping to combat that threat.”
Were those people suitable for the jobs?
The claimants suggest all three lacked experience for the critical roles they were appointed to, and that people with greater expertise could have been asked to apply. They are particularly scathing about Harding’s second appointment. “On the face of it, Baroness Harding is even less suitably qualified for this appointment than she was her first. NIHP (the National Institute for Health Protection) is intended to have far broader function than test and trace, extending across public health.” Government lawyers say that all are highly capable people. Of Harding, they say: “She is a leading expert in management and logistics, possesses highly specialist skills, and was available at short notice to take up this appointment.”
• 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.
