“3. An organisation seeking the grant of a Royal Charter must petition Her Majesty the Queen in Council. On its website, the Privy Council Office invites informal approaches before a petition is lodged, to afford that office the opportunity of giving advice about the chances of success. Petitioners are advised to take soundings among bodies which may have an interest in the outcome. Once a formal petition has been lodged, it is advertised in the London Gazette. Any objector is entitled within six weeks to lodge a counter-petition. The petition is considered by a sub-committee of the Privy Council, comprising Ministers of the departments most closely connected with the activities of the petitioner. Unanimity amongst the members of the committee is required before a recommendation for the grant of a Royal Charter is made.”
“… New grants of Royal Charters are these days reserved for eminent professional bodies or charities which have a solid record of achievement and are financially sound. In the case of professional bodies they should represent a field of activity which is unique and not covered by other professional bodies. At least 75% of the corporate members should be qualified to first degree level standard. Finally, both in the case of charities and professional bodies, incorporation by Charter should be in the public interest. The last consideration is important, since once incorporated by Royal Charter a body surrenders significant aspects of the control of its internal affairs to the Privy Council. Amendments to Charters can be made only with the agreement of The Queen in Council, and amendments to the body’s by-laws require the approval of the Council (though not normally of Her Majesty). This effectively means a significant degree of Government regulation of the affairs of the body, and the Privy Council will therefore wish to be satisfied that such regulation accords with public policy.”
“5. APM is a company limited by guarantee and a registered charity. In May 2008, it claimed to have 16,340 individual members in the United Kingdom. It puts its individual membership now at about 20,000. In addition, it has about 500 corporate members, including several Government departments. Its object, set out in its Articles of Association and in paragraph 2 of its draft Charter, is ‘To advance the science, theory and practice of project and programme management for the public benefit’. In its petition, it claims that its work ‘in leading, developing and regulating the profession of project management is of significant public benefit’ and that the public interest would be enhanced if a Charter of incorporation were to be granted. Its activities are mainly conducted in the United Kingdom. 6. PMI is a not-for-profit company incorporated under the laws of Pennsylvania. It claims an individual membership of nearly 800,000 worldwide. It has a little over 6,000 members in the United Kingdom, of whom 3,300 belong to its UK chapter. It is by far the world’s largest project management membership association. 7. Both APM and PMI further their objectives by means that are broadly similar: setting examinations in project management; publishing a corpus of knowledge gleaned from experience; maintaining a register of members; laying down and maintaining a good standard of professional conduct among their members; encouraging public confidence in project management as an activity; and thereby enabling their members to further their professional careers. Each respects the other. There is a difference of opinion about whether or not they are commercial rivals: PMI claims that they are; but APM claims that, as not-for-profit companies, they are not. This debate is sterile. Both provide a similar service in the same field of enterprise. Both seek to recruit members. A perceived benefit conferred on one may make that company more attractive to potential members than the other.”
“8. In 2007, APM decided that it wished to apply for a Royal Charter. It set about doing so in the manner advised by the Privy Council Office. First of all it canvassed support within government. It received it. By letters dated18 December 2007 ,28 January 2008 (x 2),27 February 2008 ,28 February 2008 and17 March 2008 , senior officials in the Ministry of Defence, the Department for Children, Schools and Families, the Department of Health, the Office of Government Commerce, the Department for Business Enterprise and Regulatory Reform, the Department for Transport and the Cabinet Office respectively, gave their support to the proposal. By a six page document dated17 April 2008 , APM notified the Privy Council Office of its wish to petition for a Royal Charter. It stated that it proposed to establish a register of Chartered practitioners for whom it would set rigorous entry requirements and establish a code of conduct and a complaints and disciplinary procedure. This prompted an immediate response from PMI: by a 13 page letter dated18 April 2008 to the Privy Council Office White & Case set out detailed informal grounds of opposition. 9. On1 October 2008 APM lodged its formal petition and draft Charter and by-laws with the Privy Council Office. Notice of the presentation of the petition was given in the London Gazette on16 October 2008 . The notice specified the time by which counter-petitions should be delivered as4 December 2008 . PMI and their advisers missed the deadline. By a letter dated22 December 2008 written, it seems, in ignorance of the fact that a formal petition had been lodged, White & Case set out PMI’s continuing objection to the grant of a Royal Charter. A copy of APM’s petition was not supplied to White & Case until27 April 2009 . This prompted a detailed response on27 May 2009 , in a 32 page submission with eight annexes. No point is taken by any party against PMI that, because they missed the deadline, they were disentitled to raise objections to the grant of a Royal Charter to APM. All parties have rightly treated the submission of27 May 2009 as if it were a counter-petition lodged in time.”
“Having now considered the Privy Council’s published criteria for the grant of Charter status and all of the submissions made by APM and its competitor, the Project Management Institute (PMI), the department does not recommend the grant of Charter status to APM. The decision has been reached on the basis that we do not consider that APM has satisfied the Privy Council’s published criteria (in particular criteria (a) which provides that the applicant should have as its members most of the eligible field for membership).”
“16. At the meeting, I agreed that I would talk to David Pitchford to see whether he agreed that it would be sensible for the Minister, and in particular for David and his unit in the Cabinet Office, to act as the lead in considering APM’s Petition. I spoke to David shortly after the meeting on 14 October and he agreed that it would be sensible for him to take the lead given the recent machinery of government changes and his role as Head of the Profession for PPM. 17. One of the reasons it was felt that it would be beneficial if the Charter application were to pass to David and me was that neither of us had had any previous involvement in APM’s Charter application. We were able to consider the application from an entirely independent and fresh perspective. … 22. As I have said, the lead official was David Pitchford. David was not, and never had been, a member of APM. He had no personal connections with APM. Prior to the transfer of the lead role in this matter to the Minister, David had had no involvement at all in considering or responding to it. Indeed, to the best of my knowledge and belief, he had not had any exposure at that time to APM, or the UK project management profession more generally, other than through speaking at a conference organised by APM in October 2010 …. 23. I worked with David on this matter as I, too, had (and have) no links to APM. I am not, and never have been, a member of APM. In October 2010 I had attended the APM conference at which David spoke, but I had no personal connections with APM, no business engagements with them and to the best of my recollection no exposure to APM or to UK project management profession generally.”
“As the independent assessor your role is to assess APM’s application for a Royal Charter against the criteria published by the PCO. You must consider the evidence afresh ….”
“15. Ms Turner conducted a detailed and careful analysis of ‘the strength of APM’s case against the guidance on the five criteria’. Her conclusions were as follows: a) It was uncontentious that project management is a unique profession, which had emerged as a separate profession within the past 40 to 50 years. Her conclusion was supported by a consensus amongst the range of respondents, including PMI. She noted that APM’s figures showed that it did not have as members ‘most’ of the eligible field of membership; and that there was some overlap between the membership of APM and PMI, but no relevant overlap between them and members of other bodies. She noted the strong support from nearly all respondents for APM’s petition. Her assessment was that ‘a reasonable conclusion is that the first criterion, taken in the round, is satisfied by APM’. b) The Privy Council’s second criterion was expanded in an earlier statement on its website: ‘At least 75% of the corporate members should be qualified to first degree level standard’. ‘Corporate membership’ is not a reference to corporate members, which would be a nonsense, but to full members of the incorporated body. She noted that APM claimed in its initial application that 65% of its membership held a first degree, a figure which it estimated would have reached 75% by April 2011. On the basis of those figures and the steady increase which they demonstrated, she concluded that APM fulfilled this criterion. c) She concluded, uncontroversially, that APM was financially sound and able to demonstrate a track record of achievement over a number of years. d) She began her analysis of the fourth criterion by defining the sense in which ‘regulation’ was used in the criterion and concluded that it meant not the enforcement of particular standards, but the development of a set of standards and good practice which are independently recognised and valued by practitioners and clients. She noted that, with the exception of PMI, there was a consensus that the grant of Chartered status to APM and its maintenance of a register of practitioners with a proven level of expertise would provide a new and welcome resource for them. She noted the weight of opinion amongst respondents that there was ‘a plausible argument’ that a Chartered title awarded by a respected professional body would increase the number of well qualified practitioners. She concluded that there was strong evidence that the fourth criterion was met. e) She concluded, uncontroversially, that the fifth criterion was met. 16. She then addressed what she described as the ‘public interest test’. She discerned a consensus amongst respondents that demand for well qualified project managers exceeded supply and that raising the profile of project management as a profession via Chartered status would attract more graduates to select it as their career of choice. She also noted that there was evidence for the argument that professionalism in project management was an important factor in the successful delivery of major projects. She addressed PMI’s claim that the grant of Chartered status to APM would attract practitioners to it and concluded that the claim was ‘objectively plausible and well supported by respondents’. However, she rejected PMI’s contention that this would create a competitive advantage for APM, because neither APM nor PMI were trading commercially. Further, because APM’s proposed ‘Chartered Project Professional’ title would not be limited to members of APM, there was no objective basis for PMI’s claim that Chartered status could be a direct cause of loss of membership of PMI or affect the quality and standing of its qualifications. 17. She also dismissed summarily the argument no longer pursued by PMI that the grant of a Charter would infringe EU law. Her overall conclusion was that the Privy Council Office’s five published criteria ‘measured in the round’ were met, as was the wider public interest test. Her recommendation was that APM’s petition should be approved.”
“The application of the public interest consideration in this case is crucial. My view, based on experience so far in dealing with the UK Government’s Major Projects, is that the demand for well-qualified project managers most definitely exceeds supply and that having a body with chartered status would raise the profile of Project Management and make a substantial difference. There is no doubt in my mind that APM is the appropriate body. My recommendation is, therefore, that the public interest is compelling enough to recommend that APM are granted a Royal Charter despite the other criteria not being fully met.”
“We carefully considered all the points and representations they had made. Once we had done so, we assessed that the position was the same as it had been when David had submitted to the Minister on10 October 2011 . Accordingly, on24 October 2012 , we re-submitted to the Minister’s Private Office the October 2011 submission and advised him to recommend in favour of granting a Royal Charter to APM …. This submission however was not formally sent to the Minister until the4 February 2013 …, as further correspondence was received from PMI and had to be considered. Our recommendation remained the same.”
“Accordingly, we are now writing to all Departments which make up the Privy Council sub-committee again, providing you with copies of all the representations made by both PMI and APM. I also attach a copy of the digest prepared by officials in the MPA [Major Projects Authority] which summarises the arguments in favour of the grant of a Royal Charter to APM and the objections, also their assessment of the public interest in this case. I am now therefore writing to ask that you consider all the information provided to you with this letter, and make a fresh recommendation, in both your capacity as a Minister with a policy interest and as a Privy Counsellor, whether you recommend that Her Majesty grant a Charter to APM. I would like you to bear in mind that we consider that there is a real risk of a judicial review application being made, whatever your recommendation”
“24. Turning to the substance: having considered this matter – and all the representations - afresh, the Minister for the Cabinet Office is of the view that in all the circumstances (in particular, taking into account the substantial degree to which APM meets or exceeds the five criteria, whilst acknowledging that it does not meet every aspect in full), there is a compelling public interest in favour of granting APM a Royal Charter. 25. It is recognised that PMI, like APM, is a charitable organisation which charges membership fees and some project management professionals may choose between APM and PMI’s UK Chapter. PMI notified its UK members and encouraged them to object to the proposed Charter application. To date 113 letters from PMI members or members organisations have been received (104 against, 1 neutral, and 8 for). However: a. there is no restriction on being a member of both organisations. It is quite possible to join both, and currently some people choose to be members of both; b. APM is, by a considerable margin, the largest project management professionals body in the UK, whereas PMI’s presence is predominantly abroad; c. The ‘Chartered Project Professional’ title would not be limited to members of APM. In other words, project professionals will not have to be a member of APM to become a Chartered Project Manager. They may choose not to be members of a professional body, or they may choose to be members of PMI, and still obtain Chartered status. 26. Given the overwhelming support for the APM’s applications from a large number of respondents and the variety of sectors represented, it is clear that the APM is well placed to fulfil the role of a chartered project management profession and that it would be in the public interest if APM were to be awarded chartered status. 27. The Minister for the Cabinet Office having considered all the representations, therefore, believes the public interest is compelling enough to recommend that APM are granted a Royal Charter despite the other criteria not being fully met.”
“The Ministry of Defence has supported APM becoming a Chartered body since its preliminary application in April 2008. To this end, MOD officials, including the then Permanent Under Secretary, on behalf of the then Secretary of State, and representatives from our Defence Academy in Shrivenham, have written on no fewer than four occasions to state support for the initiative. Having been asked to make a fresh recommendation, I would reconfirm support for the APM’s application for Royal Charter. We in Defence continue to work in close conjunction with APM to raise professional standards in project management and we see the benefit of this training and education in defence acquisition and the national industrial base. A Chartered body will support our endeavours to raise professional standards in the management of defence projects.”
“The application submitted by APM for Royal Charter has been comprehensively reviewed by this Department and this review has concluded that a number of the PCO’s published criteria are met. In addition, the Major Projects Authority within the Cabinet Office, who lead on PPM issues across government, has also reviewed APM’s application and has concluded that the grant of a Charter to APM is in the public interest. Therefore, I can confirm that BIS continues to support APM’s application for a grant of a Royal Charter ….”
“After considering the application, the points put forward by the Project Management Institute, and the recommendations and supporting information provided by the Minister for the Cabinet Office, I am content to support the recommendation. In doing so I have taken into account the nature of the organisation, the points made by parties involved in paragraphs 6-22 of the Digest provided by the Privy Council Office, that not every aspect has to be satisfied in order to put this application forward and the conclusions. These particularly set out that the grant of a Royal Charter does not preclude members of the Project Management Institute from gaining ‘Chartered Project Professional’ title.”
“I have considered the representations made by both PMI and APM from 2008-2013. I have also considered the MPA’s recent digest that set out: their endorsement of APM’s application, an outline of the arguments in favour of the grant of a Royal Charter to APM and the objections, and an assessment of the public interest in the case. I can now confirm that the Department for Transport continues to recommend that Her Majesty grant a Charter to APM.”
“39. The consequences for PMI of the grant of a Royal Charter to APM do not satisfy Lord Diplock’s tests. It will not alter any right or obligation of PMI enforceable by or against them in private law. It will not deprive them of some benefit or advantage which they had in the past been permitted by the decision-maker to enjoy: they are as free to set standards for the project and programme management profession and to recruit members as they would be if no Charter were granted. Further, they have received no assurance from the Committee of the Privy Council that any benefit or advantage which they now enjoy will not be withdrawn. PMI’s claim, when stripped to essentials, goes significantly beyond any set of circumstances in which a judicial review claim of this kind has been entertained, still less succeeded. PMI’s claim is that they have a legitimate expectation that the Privy Council will not adopt a recommendation to confer a benefit on APM when no right or obligation enforceable in private law or benefit or advantage which they have been permitted to enjoy by the decision-maker would be affected by the decision. The highest at which their claim can be put is that, until now, they have competed for the recruitment of members in a market place in which their principal competitor, like them, has been a not-for-profit company, whereas, if a Royal Charter is granted to their competitor, it will enjoy greater prestige in the market place so that its competitive position will be enhanced. In the absence of any possible infringement of competition law – and none is alleged – I cannot see how PMI’s challenge can be brought within the established framework of judicial review and I would be prepared to dismiss its claim on that ground alone.”
“42. … What the Privy Council’s statement does is to provide no more than guidance on the factors to which it will have regard when exercising the wide discretion which it enjoys when entertaining a petition for the grant of a Royal Charter.”
“47. … [The] Committee had to make a judgment about differing estimates of the number of eligible professionals and of the proportion who were members of APM. In the letter of4 July 2013 reporting and explaining the Committee’s decision, the Treasury Solicitor identified the ‘eligible field for membership’ as having been estimated in the region of 69,000-77,000. I have already identified the basis for that estimate in paragraph 11 above. It was one on which the Committee was entitled to rely. There is some uncertainty about the qualifications and experience required to fall within the ‘eligible field for membership’. Mr Crow accurately states that of the total membership claimed by APM in their informal petition on17 April 2008 (16,330) only 11,303 were full members; and that APM were asserting to the Privy Council that the standards for a Chartered professional would exceed those for full membership of APM. This suggests that, by 2013, the number of APM’s individual members within the ‘eligible field’ may have been somewhat less than 20,000; but the difference is not so great as to displace the Committee’s conclusion ….”
“48. … APM had told the Privy Council Office in support of its petition that 65% of its membership held a first degree, 33% held a post-graduate degree and 10% belonged [to] another relevant Chartered body. Its own estimate was that, allowing for double counting, 88% of its members held a first degree. Mr Crow makes the reasonable observation that most of those who hold post-graduate degrees will have graduated beforehand, so that the double counting must be greater than that allowed. APM’s answer is that its figures were based upon a survey and that many respondents only gave their highest ranking degree. It is impossible to get to the bottom of these differences and would have been impossible for the Committee to have done so. Its conclusion that 75% of APM members had a relevant first degree was broad-brush but not outlandish and it is certainly insufficient to justify quashing a decision on that account.”
“45. Mr Crow submits that this, too, is criterion or statement of policy which can be departed from only for compelling public interest reasons. I readily accept that the proposal is controversial; but I do not accept that this sentence amounts to a criterion or a statement of policy which can only be departed from for compelling public interest reasons. It is advice, not a statement of policy. It is in the same category as the advice given to petitioners to take soundings among interested bodies and to approach the Privy Council informally before a petition is presented. If APM had not taken such soundings or sought advice informally beforehand, PMI could not have founded any judicial review challenge on the fact that they had not done so. The statement that a proposal rendered controversial by a counter-petition is unlikely to succeed is no more a criterion or requirement than was Lord Bingham’s observation in R (Razgar) v Secretary of State for the Home Department[2004] 2 AC 368 para 20, that a decision taken pursuant to the lawful operaton of immigration control would be proportionate in all save a small minority of exceptional cases, a legal test: see Huang v Secretary of State for the Home Department[2007] 1 AC 167 para 20. The fact that no reference was made to this statement by the Privy Council in the digest submitted to Ministers by the Cabinet Office in 2013 is immaterial. There was no need to refer to it.”
“49. … The reasoning of Ms Turner and of Mr Pitchford as distilled into the digest submitted to members of the Committee was squarely founded on the premise that it was in the public interest that there should be a Chartered body of project and programme managers and that that body should be APM. I do not understand Mr Crow to have pressed the argument that it was wrong to break down the decision into two in this manner. If he had done so, I would have rejected it: approaching the issue in two stages is a rational and sensible means of deciding the question. Mr Crow submits that there was no evidential basis for the conclusion that the grant of a Royal Charter would produce the benefits perceived by Ms Turner, Mr Pitchford and the Committee. If he means by that that there was no statistical or other analysis of the effect on a profession of the grant of a Royal Charter to its leading body, he is right; but that was not required. What Mr Pitchford and the Ministers who took the decision were entitled to bring to bear was their own experience and understanding of the effect of having a body with Chartered status at the heart of a profession. I have set out in paragraphs 15, 16 and 19-22 above their own conclusions about it. As they noted, they were supported by the overwhelming majority of respondents who make use of the services of project and programme managers. It was plainly a judgement that they and the Committee were entitled to make. 50. No criticism is made of APM as professional body, beyond the fact that it does not comprise the great majority of professionals in the United Kingdom or elsewhere. The Committee were plainly entitled to conclude that it was fitted to the role of being a Chartered body.”
“34. I have no doubt that the weight of opinion, by a large margin, within the Government departments whose Ministers were ultimately responsible for the recommendation were strongly supportive of APM’s petition. They were entitled to be. Executive decision-making does not normally start with a blank sheet of paper. Government is entitled to found its decision upon its experience of the field in which the decision is to be made. In the case of a recommendation perceived to be of benefit both to the Government and to the body likely to benefit from the decision, it is entitled to take into account, in favour of that body, that it has had extensive and satisfactory dealings with it; and to give effect to its view that a favourable decision would enhance the public interest. 35. In fact, officials acted on the assumption that judicial review was in the offing, whatever decision was made. The senior officials responsible for the handling of the issue after primary responsibility was transferred to the Cabinet Office, David Pitchford and Susan Powell, bent over backwards to ensure that the decision-making process was robust. Neither of them had had anything to do with APM. The more junior official who worked with them, Jonathan Shebioba, had ceased to be a member of APM several years before. David Pitchford directed that /an assessment and report be commissioned from a senior civil servant who had no prior dealings with the matter, Anne Turner. Only when she produced a report supporting APM’s petition were wheels set in motion to revive it. His report did not agree precisely with hers – a fact which, by itself, suggests an absence of pre-determination. So does the change of mind by the Department for Business, Innovation and Skills, from opposition in 2009, to support in 2011. Finally, as the Privy Council Office and all relevant officials acknowledged, the decision was one for the Ministers who comprised the sub-committee. The digest supplied to them by the Cabinet Office – no doubt the principal document which the Ministers read – expressly invited them to consider the matter afresh and make an independent determination to grant or refuse APM’s petition. Unless bad faith is to be inferred on the part of the Ministers – of which there is no suggestion, let alone evidence – they must be taken to have done what they were invited to do – reach a fresh decision independently. The allegation of predetermination is ill-founded.”