The Project Management Institute, R (On the Application Of) v The Minister For The Cabinet Office & Ors [2014] EWHC 2438 (Admin)

[2014] EWHC 2438 (Admin)Case No CO/12587/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 17/07/2014
Before
MR JUSTICE MITTING
Between
THE QUEENClaimanton the application ofClaimantTHE PROJECT MANAGEMENT INSTITUTEClaimantTHE MINISTER FOR THE CABINET OFFICEDefendantsTHE PRIVY COUNCIL OFFICEDefendantTHE ATTORNEY GENERALDefendantTHE ASSOCIATION FOR PROJECT MANAGEMENTInterested Party
MR JONATHAN CROW QC AND MISS AMY ROGERS(instructed by WHITE & CASE LLP) for ClaimantMISS KAREN STEYN QC(instructed by THE TREASURY SOLICITOR) for DefendantsMR MICHAEL FORDHAM QC AND MR PAUL LUCKHURST(instructed by ALLEN & OVERY LLP) for Interested PartyHearing Hearing dates: 8 & 9 July 2014
JudgmentMR JUSTICE MITTING :The claim
[1]On 4 July 2013 the Treasury Solicitor, on behalf of the Privy Council Office and the Minister for the Cabinet Office, notified the Project Management Institute (“PMI”) that a Committee of Privy Councillors had decided to recommend to Her Majesty the Queen in Council that a Royal Charter should be granted to the Association for Project Management (“APM”) and intended to put that recommendation on the list of business for the meeting of the Privy Council due to take place on 9 October 2013. PMI challenges that decision in these proceedings with the permission of Philips J on two grounds: that the decision was irrational and contrary to the Privy Council’s published policy so as to give rise to a breach of PMI’s substantive legitimate expectation that that policy would be followed; and that the decision was vitiated by apparent bias and pre-determination. Philips J refused permission on three further grounds, of which two were procedural unfairness and a breach of European Union law. An attempt to renew the application for permission to pursue those grounds was abandoned. PMI’s challenge is, therefore, confined to the two stated grounds.

Royal Charters

[2]This is, I believe, the first time that the grant or refusal of a Royal Charter has been the subject of litigation. I propose, therefore, to begin by a brief analysis of the history and nature of Royal Charters and the process by which they are granted. A Royal Charter is granted in the exercise of prerogative powers – “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”: Dicey, The Law of the Constitution p424. It has the essential qualities of an executive, rather than legislative, act and is “best not described as legislation”: Craies on Legislation 10th Edition paragraph 3.7.8. Its original purpose was to grant corporate personality to bodies of persons conducting activities for public or private benefit. The first Royal Charter in the first category was granted to the University of Cambridge in 1231 and in the second to the Sadlers Company in 1272. Numerous grants have been made to educational institutions and livery companies ever since. The first grant of a Royal Charter to a group of persons carrying on a profession was to the Royal College of Physicians of London in 1518. At the turn of the 17th and 18th centuries, Royal Charters were granted to institutions which played a major part in the economic life of the country, notably the Bank of England in 1694 and the South Sea Company in 1711. The puncturing of the South Sea bubble in 1720 caused Parliament to prohibit the formation of joint stock companies except by Royal Charter in the Bubble Act 1720. Thereafter until the early 19th century, the grant of Royal Charters in the economic field was limited to a small number of banks and insurance companies. Between the enactment of the Chartered Companies Act 1837 and the Limited Liability Act 1855, the grant of a Royal Charter was the principal means by which economic activity could be carried on by an incorporated body without putting at risk the entire assets of those who subscribed capital to it. In consequence, a large number of trading and mining companies were incorporated by Royal Charter between those dates. Few were afterwards. From then on, the great majority of bodies incorporated by Royal Charter have been educational, charitable or professional. Lord Diplock was not quite right when he identified this function of the Privy Council as “the grant of…corporate personality to deserving bodies of persons” in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 at 410B, because almost all of the grantees have already been incorporated under legislative provisions. Grants are still made to unincorporated groups of persons – for example livery companies and, in 2012, Marylebone Cricket Club - but current practice is accurately stated by the Privy Council on its website: “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”.[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 amongst other 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 will be made.[4]A petitioner is required to submit a draft of its Charter and by-laws. Both must be approved by the Attorney General. Once a Royal Charter is granted, the Charter and by-laws cannot be amended without the consent of the Privy Council. I am led to understand by Miss Steyn QC, counsel for the defendants, that the Privy Council’s oversight of Chartered bodies is ordinarily reactive, but it does retain the power to recommend revocation of a Charter, last exercised in 1684 in respect of the Somers Isles Company, and is prepared to threaten the use of the power in appropriate circumstances. She told me that there had been one such occurrence in recent times.

APM and PMI

[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 amongst 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.

APM’s petition

[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 dated 18 December 2007, 28 January 2008 (x 2), 27 February 2008, 28 February 2008 and 17 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 dated 17 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 dated 18 April 2008 to the Privy Council Office White & Case set out detailed informal grounds of opposition.[9]On 1 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 on 16 October 2008. The notice specified the time by which counter-petitions should be delivered as 4 December 2008. PMI and their advisers missed the deadline. By a letter dated 22 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 until 27 April 2009. This prompted a detailed response on 27 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 of 27 May 2009 as if it were a counter-petition lodged in time.[10]When the petition was lodged the Office of Government Commerce came under the umbrella of HM Treasury; and the Secretary of State for Business Enterprise and Regulatory Reform was the lead Minister of the sub-committee of the Privy Council designated to consider APM’s petition. Although all other relevant departments remained supportive of APM’s petition, the lead department, by then renamed the Department for Business Innovation and Skills, changed its mind. On 23 November 2009, Pat McFadden MP Minister of State at the Department notified the Privy Council Office that his department did not recommend the grant of Charter status to APM. The reason for the decision was that it did not consider that APM had satisfied the Privy Council’s published criteria (fully set out below), in particular criterion (a): that the petitioner should have as its members most of the eligible field for membership. Recognising that unanimity was not available, on 21 December 2009 APM asked the Privy Council Office to put its petition “on hold”. On the same day, the Privy Council Office notified White & Case that APM had requested that its petition be put on hold. It was.[11]APM then lobbied Central Government and in particular the Department for Business, Innovation and Skills in support of its petition. Lisa Lyne, a senior official in that department, noted in an email dated 2 March 2010 that “APM appears to be mobilising its membership in Government” – a reference to the numerous members of APM working in support of Government projects from within Government. In an email sent on 1 March 2010 by the Government Chief Construction Adviser at the Department for Business, Innovation and Skills to an unknown recipient, he/she expressed the view that the decision notified in the letter of 23 November 2009 was “inimical to the international competitiveness of British businesses”. He/she proposed to meet the recipient and Lisa Lyne to talk it through. On 8 April 2010 Lisa Lyne notified APM that her department was willing to review its decision. This prompted a five page letter from APM dated 17 May 2010 with numerous appendices. The letter made a number of claims upon which reliance was subsequently placed: that APM’s membership as at May 2009 was 20,959; that PMI’s UK membership was 5,431; that there was an overlap of 9% of APM’s membership between the two companies in the UK; and that the number of project professionals who might be eligible for professional membership fell within the range 69,000 – 77,000. (This was based on a published estimate by a third party, “Arras People”, a project management recruitment specialist). PMI were not invited to join in this exchange and plausibly claim that they knew nothing of it.[12]By then, a new Government had come into office. Further organisational changes also occurred in the second half of 2010. The Office of Government Commerce moved under the umbrella of the Efficiency and Reform Group in the Cabinet Office. Both were eventually subsumed within that office. Lead responsibility for considering APM’s petition was transferred from the Department for Business, Innovation and Skills to the Cabinet Office. In exchanges of emails in July and August, Lisa Lyne made it clear that it would assist her department if the Privy Council Office or the Cabinet Office were to set out clearly the tests which would be applied by the Privy Council, in particular those relating to the public interest, when considering the petition. On 10 August 2010, in an email to an unknown recipient, she indicated, perhaps with a touch of cynicism, a possible way forward for her department:
“Of course, if the application is reactivated by APM, the views of the Cabinet Office will be sought by the PCO (Privy Council Office) alongside all other departments, by this time, with the OGC (Office of Government Commerce) as part of its organisation, it would be justified for BIS simply to align with, or defer to, the Cabinet Office response on “public interest”, safe in the knowledge that it leads on the PPM (Project and Programme Management) profession in government. Agree?”
[13]In the second half of October 2010, David Pitchford, who had joined the Office of Government Commerce in January 2010 as the head of the Major Projects Directorate, decided that it would be sensible for him to take the lead in dealing with APM’s petition. Susan Powell, a deputy director, has stated in her witness statement of 13 December 2013 that one of the reasons that both of them felt that it would be beneficial if that were to happen was that neither he nor she had any previous involvement in the petition. I accept her evidence on this point. Further, neither he nor she had at any time been members of APM.[14]Mr. Pitchford decided to commission an assessment and report from a senior civil servant who had had nothing to do with the petition or APM, Anne Turner. A briefing note dated 7 December 2010 was prepared. It set out a summary of the history and enclosed all documents believed by the authors to be relevant to her assessment. Paragraph 6 of the briefing note set out her role:
“To assess APM’s application for a Royal Charter against the criteria published by the PCO.”
She was told that she “must consider the evidence afresh”. The criteria, taken verbatim from the Privy Council Office’s website, were set out in paragraph 6.2:
“(a) The institution concerned should comprise members of a unique profession, and should have as members most of the eligible field for membership, without significant overlap with other bodies. (b) Corporate members of the institution should be qualified to at least first degree level in a relevant discipline. (c) The institution should be financially sound and able to demonstrate a track record of achievement over a number of years. (d) Incorporation by Charter is a form of Government regulation as future amendments to the Charter and by-laws of the body require Privy Council (i.e. Government) approval. There therefore needs to be a convincing case that it would be in the public interest to regulate the body in this way. (e) The institution is normally expected to be of substantial size (5,000 members or more).”
Paragraph 6.3 noted that in addition to assessing those criteria “there is the requirement to conduct a public interest test as part of the process”.[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 for 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.[18]Her report was produced in March 2011. On 8 August 2011, the Department for Business, Innovation and Skills notified the Privy Council Office of the unconditional withdrawal of its earlier objection.[19]On 10 October 2011 David Pitchford submitted a nine page document to the Minister for the Cabinet Office setting out his recommendation that a Royal Charter be granted to APM and his reasons for it. They differ in detail from those of Ms. Turner. They are summarised in his conclusion at paragraph 20:
“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.”
[20]His reasons for making that recommendation begin with his view of where the public interest lies. He identified the public interest consideration in paragraph 10:
“Whether there is a need for a Chartered project management profession and whether the APM are best suited to represent the profession.”
He then noted the public perception that Government projects were badly run and mismanaged; and the general consensus that the UK’s ability to deliver projects successfully was hampered by a shortage of skilled and experienced project professionals. He noted the scale of the problem, identified in a recent report by the Department for Business, Innovation and Skills: the UK was short of 1,700 professional project managers needed to deliver £426 bn worth of ongoing projects. His conclusion was that the development of a cadre of professional project managers was integral to the development of the UK economically, socially and environmentally. In paragraph 13, he addressed the impact of the grant of Chartered status:
“As with other Chartered institutions, the grant of “Chartered status” will help promote project management as a distinct professional discipline in its own right and attract more people to join the profession. Its existence would promote awareness and understanding of what is required to be an effective project manager and (as has been seen with other professions) help to boost the profile and draw of the profession. It would promote the adoption of a single recognised standard for professionalism, against which the competence of practitioners can be assessed, and provide a route map for those wishing to continuously develop themselves.”
[21]He then addressed the question whether it was in the public interest that APM should fulfil this role. He noted its object (already cited) and status (a charitable company limited by guarantee). More significantly, he noted in paragraph 16 that APM currently exhibited a number of features characteristic of a Chartered profession: recognised qualifications and experience, working collaboratively with others to advance the profession, complaints procedures and a code of professional conduct. He noted the corpus of learning contained in the APM “body of knowledge”, the number of its members – around 20,000 – and its stringent entry criteria. He also noted the strong support for APM’s petition, both from within Government and from leading companies and institutions in the private sector.[22]He addressed PMI’s submission that the grant of a Royal Charter would achieve nothing more than an anti-competitive advantage for APM’s members within the UK and in the Commonwealth. He noted that PMI and APM did compete for membership and membership fees. Set against that were three considerations: it was possible to belong to both organisations; APM was by a considerable margin the largest project management professional body in the UK; and the title of Chartered Project Professional would not be limited to members of APM. His conclusion was that given the overwhelming support for APM’s petition, it was well placed to fulfil the role of a Chartered project management profession and that it would be in the public interest for it to be granted Chartered status.[23]On 26 October 2011 APM asked the Privy Council Office to take its petition “off hold”. In response to a request by APM not to tell PMI that their application would be going to the Privy Council earlier than was necessary, the Privy Council Office replied on 17 November 2011 that they were obliged to follow their commitment to PMI to inform them that the process was not in abeyance. They did so on 30 January 2012, just before the petition was formally taken off hold on 3 February 2012.[24]The Minister for the Cabinet Office was given the lead role in advising because it was now that office which had the main policy interest. A letter before claim was sent on 26 April 2012 and a response made on 14 June 2012.[25]As Susan Powell explains in paragraph 49 of her witness statement, she, David Pitchford and Jonathan Shebioba together considered representations made by all parties in the autumn of 2012. On 24 October 2012, she sent an email to the Cabinet Office recommending that APM’s petition be supported. Their review of correspondence and representations continued after that and on 4 February 2013 they reiterated their recommendation. The Cabinet Office reported back on 6 February 2013 stating that the Minister was content to recommend that APM’s Charter be granted.[26]An eight page digest was prepared by the Cabinet Office and circulated to the departments whose Minsters would form the Committee of the Privy Council which would decide to recommend or refuse the grant of a Royal Charter to APM. The digest summarised the procedural history and, in paragraph 7, invited each Minister “to consider the matter afresh and make an independent determination to grant or refuse APM’s petition”. It set out the Privy Council’s five criteria and summarised the main representations made by PMI and APM. It noted that 113 letters from PMI members or members’ organisations had been received, of which 104 were against, one was neutral and eight were for. Subject to that updating, it set out the conclusions of the Cabinet Office that APM should be granted a Royal Charter, despite the Privy Council’s criteria not being fully met. The reasons for doing so are substantially the same as those set out in Mr. Pitchford’s report and it is not necessary to repeat them.[27]Letters dated 10 April 2013, 17 April 2013, 18 April 2013, 30 April 2013 and 13 June 2013 were sent by the five Ministers designated to form the Committee. All but one expressly supported the petition. The exception was the Secretary of State for Education, who gave notice of his withdrawal from the process, because he wished to focus his attention on education. The Committee therefore comprised the Minister for the Cabinet Office and the Secretaries of State for Business, Innovation and Skills, Defence, Health and Transport. By 13 June 2013, all had recommended the grant of a Royal Charter to APM.[28]On 4 July 2013, the Treasury Solicitor notified White & Case of the Committee’s conclusion and of the Privy Council Office’s intention to put their recommendation before the meeting due to take place on 9 October 2013. That prompted this claim. Formal ratification of the recommendation has been deferred until it has been determined.

Apparent bias and pre-determination

[29]I will deal with the second of PMI’s grounds of challenge first, because the issues are straightforward and the answer clear. PMI alleges apparent bias and actual pre-determination, but not actual bias or procedural impropriety. Apparent bias is founded upon the claimed pecuniary interest of the Government in the grant of a Royal Charter to APM. Pre-determination is founded on the history of the Government’s dealings with APM, in particular those of the Office of Government Commerce, as subsumed in the Cabinet Office.[30]For several years, the Government has promoted a set of project management qualifications and services under the clumsy acronym PRINCE 2 (“PRojects IN Controlled Environments 2”). By a mis-named “concordat” (APM is an unconvincing surrogate for the Holy See) of 2009 the Office of Government Commerce stated that it would continue to involve APM in the development of the Government Project and Performance Management profession and would make available its products and services to the Government; and that as and when APM achieved its Royal Charter, the Office of Government Commerce would actively promote corporate and individual membership of the APM within Government. By a rather more concrete agreement struck in April 2013 between the Government and Capita Plc., a joint venture was formed owned as to 49% by the Government and 51% by Capita to “own and trade on the “best management practice” portfolio of professional standards developed by the Civil Service”. The portfolio included PRINCE 2. Capita agreed to pay the Government £10 million up front for its stake and a further £9.4 million in each of the company’s first three years. Thereafter, profits would be rateably divided. In a press release published on 26 April 2013 the Cabinet Office stated that it was expected “to boost returns for taxpayers by £500 million over 10 years, and drive growth through exports projected to be worth £600 million over the period”. APM counts a PRINCE 2 qualification towards its principal qualification, APMP for Professional. Consequently, PMI contend that the grant of a Royal Charter will serve to promote APM’s own qualification; and so, one of the potential staging posts to attaining it – the PRINCE 2 qualification.[31]PMI’s chain of reasoning is attenuated. No reasonable person could reasonably believe that Government support for the grant of a Royal Charter to APM could possibly be motivated by the desire to profit financially from the promotion of its own PRINCE 2 qualification. Further, even if such a motive could be inferred, it would not vitiate the decision. The Committee of the Privy Council was not sitting in a judicial capacity or exercising a judicial function. The standards which apply to a judge do not apply to the Committee. The fact that the Government may have a financial interest in the making of an executive decision does not inhibit it from making it. As Lord Slynn explained in R (Alconbury Developments Limited v. Secretary of State for the Environment, Transport and the Region) [2003] 2 AC 295 at § 55, “I do not consider that the financial interests of the Ministry of Defence automatically precludes a decision on planning grounds by the Secretary of State…If of course specific breaches of the administrative law rules are established, as for example if the financial interests of the Government were wrongly taken into account by the Secretary of State, then specific challenges on those grounds may be possible on judicial review.” No such grounds were advanced. The bare proposition that the Government might profit from the decision does not mean that it must be set aside on the ground of apparent bias.[32]The challenge based on pre-determination is based on two factors: the long-standing interaction between Government and APM, exemplified by the “concordat”; and the firm support for APM’s application from Government departments, but in particular the Office of Government Commerce and the Cabinet Office.[33]There can be no doubt that Government departments and APM have worked co-operatively together for many years. Further, in 2008, the collective view of the departments whose Ministers would form the Privy Council Committee was that APM should apply for and be granted a Royal Charter. An internal memorandum to the Secretary of State for Defence dated 5 April 2013 says as much. On 8 February 2008 the Chief Executive of the Office of Government Commerce wrote to APM acknowledging that they had in the past encouraged APM to apply for a Charter and expressed delight that they were now doing so. On 17 March 2008, the Director General for Transformational Government and Cabinet Office Management wrote to APM to state that he was delighted to confirm that his office fully supported APM’s bid for the award of a Royal Charter. Mr. Crow QC draws attention to the fact that the lead role in considering APM’s petition was transferred in late 2010 from the doubting Department for Business, Innovation and Skills to the apparently committed Cabinet Office. He does not submit that what thereafter occurred was a charade, merely that it would lead the reasonable observer to suspect that decision-making had been put in the hands of committed supporters.[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 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 pre-determination is ill-founded.

The substantive grounds of challenge

[36]Before the decision of the House of Lords in Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374, it was possible to contend that a decision taken in the exercise of prerogative powers was not amenable to judicial review. It is now settled law that it is the subject matter, not the source, of a decision made in the exercise of prerogative powers which is determinative: per Lord Scarman at 407F, per Lord Diplock at 410D and per Lord Roskill at 417H-418B. Miss Steyn and Mr. Fordham QC rightly concede that the exercise of the Royal Prerogative to grant or not to grant a Royal Charter is in principle amenable to judicial review. Both, in fact, go further than that and accept that the recommendation to grant a Royal Charter to APM is, in principle, amenable to a challenge by PMI, though neither concedes that the challenge is meritorious. I will consider the challenge on its merits, but will first address the underlying question, whether or not the decision is amenable to review on the grounds relied on by PMI: that the decision was irrational and contrary to the Privy Council’s published policy so as to give rise to a breach of PMI’s substantive legitimate expectation that the policy would be followed.[37]In the GCHQ case Lord Diplock identified the circumstances under which a decision was amenable to judicial review at 408F – 409C “To qualify as a subject for judicial review the decision must have consequences which affect some person (or body of persons) other than the decision-maker, although it may affect him too. It must affect some other person either: a) by altering rights or obligations of that person which are enforceable by or against him in private law; or b) by depriving him of some benefit or advantage which either(i) he had in the past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to continue to do until there has been communicated to him some rational grounds for withdrawing it on which he has been given an opportunity to comment; or(ii) he has received assurance from the decision-maker will not be withdrawn without giving him first an opportunity of advancing reasons contending that they should not be withdrawn. (I prefer to continue to call the kind of expectation that qualifies a decision for inclusion in class (b) a “legitimate expectation” rather than a “reasonable expectation”, in order thereby to indicate that it has consequences to which effect will be given in public law, whereas an expectation or hope that some benefit or advantage would continue to be enjoyed, although it might well be entertained by a “reasonable” man, would not necessarily have such consequences…. For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph.” For a decision to be susceptible to judicial review the decision-maker must be empowered by public law (and not merely as in arbitration, by agreement between private parties) to make decisions that, if validly made, will lead to administrative action or abstention from action by an authority endowed by law with executive powers, which have one or other of the consequences mentioned in the preceding paragraph.”[38]In recent years, the High Court has entertained what can be called “public interest” claims. Challenges can be made in cases of alleged unlawfulness by an individual with no interest in the outcome, even when the allegation of unlawfulness is in part based upon a failure by the Government to follow a declared policy. A notable example is R (Maya Evans) v. Secretary of State for Defence [2010] EWHC 1445 Admin, though it is to be noted that the claimant’s standing to bring that challenge was not determined by the Court: the point was simply abandoned by the Secretary of State, see paragraph 2. The costs regime also envisages that a claim may be brought simply in the public interest: one of the grounds which a claimant normally must establish before a protective costs order is made that he has no financial interest in the outcome of the case: R (Corner House Research) v. Secretary of State for Trade and Industry [2005] EWHC Civ 192. But in a case in which a claimant is seeking to protect a perceived economic interest of his own, I know of no authority which casts doubt on Lord Diplock’s statement of what is necessary to found a claim for judicial review.[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.[40]In that context, I do not believe that Lord Dyson’s statement of principle in R (Lumba) v. Secretary of State for the Home Department [2012] 1 AC 245 at § 26 affects the point. I, of course, accept that the principle that policy must be consistently applied is not in doubt; but that statement was made in the context of the application of a policy to an individual directly affected by it. Lord Dyson was not addressing the issue which I have to determine: who can hold the Government to a published policy and in what circumstances, by judicial review proceedings. That person must have some interest in the application of the policy. A republican, who objected to the grant of a Royal Charter in principle, or a person aggrieved by some past conduct of the petitioner would be refused permission to apply for judicial review, however persuasive the argument that the Privy Council was proposing to depart from its published policy.[41]In case my judgment on that issue is wrong, I now turn to the merits of the challenge. The basis for PMI’s challenge is that the recommendation to grant a Royal Charter was contrary to the Privy Council’s published policy. I have already set out the five criteria identified by the Privy Council as the main criteria and need not repeat them. The published policy, however, makes it plain that those criteria are not rigid standards by reference to which a petition will necessarily be granted or refused. On the first page of the published guidance, the importance of the public interest is emphasised, “Finally, both in the case of charities and professional bodies, incorporation by Charter should be in the public interest. This 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 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.” The words which introduce and conclude the statement of the main criteria emphasise the wide discretion available to the Privy Council:
“…A body applying for a Charter would normally (my emphasis) be expected to meet a number of criteria. Each application is dealt with on its merits, (my emphasis) but in the case of professional institutions the main criteria are… It should be stressed that appearing to meet these criteria does not mean that a body will automatically be granted a Charter. ”
[42]Miss Steyn and Mr. Fordham submit that these words, by themselves, defeat any claim based upon a substantive legitimate expectation, for the settled reason that the policy, including the main criteria, read as a whole does not amount to a representation which is “clear, unambiguous and devoid of relevant qualification”: R v. IRC exparte MFK (Underwriting Agencies Limted) [1990] 1 WLR 1545 at 1570 per Bingham LJ. I agree. 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. Although I will, in deference to the arguments of counsel, examine PMI’s detailed claims that three of the five main criteria are not fulfilled, I would dismiss this part of PMI’s claim on that ground alone.[43]The published guidance also makes it clear that the Privy Council will treat the public interest generally as an important consideration. The guidance makes that point clear to those petitioning for the grant of a Royal Charter and, if PMI are right, to those who are not as well.[44]Under the heading “Preliminary steps” the Privy Council gives guidance as to what a petitioner should do. It draws attention to the fact that the process is a public one and that other interested individuals or organisations can comment on the petition or lodge a counter-petition. It sets out what should be included in a memorandum accompanying the petition. It also sets out the advice, already cited, to a petitioner to take soundings among other bodies who may have an interest. This aspect of the guidance also contains the following sentence:
“Any proposal which is rendered controversial by a counter-petition is unlikely to succeed.”
[45]Mr. Crow submits that this, too, is a 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 § 20, that a decision taken pursuant to the lawful operation 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 § 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.[46]Mr. Crow submits that the reasoning of the Committee on three of the criteria – (a), (b) and (d) – and its overall conclusion on the public interest were flawed, because unsupported by, or based on a misunderstanding of, the evidence considered. In part in consequence, he submits that the overall decision that it was in the public interest that a Royal Charter should be granted to APM was so flawed that it should be quashed.[47]As to criterion (a) he criticises three conclusions: that project and programme management is “a unique profession”; that although the Committee correctly acknowledged that APM did not have as members “most of the eligible field for membership” it over-estimated APM’s share of that field; and it should not have disregarded the overlap in membership between APM and PMI. I deal with each of these in turn. It was a matter of judgement for the Committee to decide whether or not project and programme management is a unique profession. Its judgement that it is was securely founded on the material considered by Ms. Turner to which I have referred at paragraph 15(a) above. As to the second matter, 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 of 4 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 on 17 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. As to the third matter, there was an overlap of between nine and eleven percent of the membership of APM and of PMI: something between a quarter (of PMI’s total UK membership) and a half (of PMI’s UK chapter) belong to APM as well. The Committee’s conclusion, as reported in the letter of 4 July 2013, that the overlap in membership was not significant is one to which it was entitled to come. There is, therefore, nothing of substance in the challenge to the Committee’s assessment of criterion (a).[48]As to criterion (b) the letter of 4 July 2013 simply stated that over 75% of members of APM have a first or post-graduate degree. Mr. Crow submits that this conclusion is plainly wrong. 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 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 its decision on that account.[49]Of greater substance is Mr. Crow’s challenge to the Committee’s conclusion on criterion (d). 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 a 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.[51]Mr. Crow’s underlying submission is that the Committee and those who advise them did not pay proper regard to the impact of the grant of a Royal Charter to APM on competition. The simple answer is that they did and concluded, for the reasons which they gave and which I have cited in paragraph 16 and 22 above, that there would be no material impact on competition or, necessarily, damage to the economic interests of PMI. Again, this was a matter of judgement, which they were entitled to reach. One aspect of it requires further elaboration. Paragraph 9 of the proposed by-laws of APM provide, “Admission to the register shall be open to members of the Association and, in defined circumstances, those who are not members of the Association according to criteria agreed from time to time by the Board and published in the regulations.” Although the by-laws cannot be changed without Privy Council consent, the regulations can be. By-law 20 provides that no regulation shall be inconsistent with the Royal Charter and by-laws, but that is an imprecise safeguard for non-members of APM who wish to be Chartered project management professionals. Mr. Crow submits that, accordingly, one of the threads which runs through the decision-making process – that the grant of a Royal Charter to APM would not be anti-competitive because Chartered status would be open to members of other organisations or none – is insecurely founded: it would be open to the Board to impose unjustifiably discriminatory requirements upon non-members. The answer was provided by Miss Steyn. Mr. Crow did not require her answer to be supported by further evidence, so I am content to accept it as it stands. It is that it is not common for a Chartered body to have a register of Chartered individuals but when they do, the provision in paragraph 9 of APM’s proposed by-laws is standard. On that basis, there was and is no reason to believe that APM has framed its by-laws and regulations in such a way as to permit it to act in an anti-competitive manner when Chartered. All that is done, is to follow standard practice. There being no evidence that it will misuse any powers granted by a Charter, the Committee were entitled to reach the conclusion which they did, that individuals could be Chartered who were not members of APM.[52]For the reasons which I have set out above, this claim must be dismissed. I would invite the parties to make written submissions as to costs, if they are not agreed.

Cited in 2 later judgments