QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
on the application of
THE PROJECT MANAGEMENT INSTITUTE
|- and -
|THE MINISTER FOR THE CABINET OFFICE
THE PRIVY COUNCIL OFFICE
THE ATTORNEY GENERAL
- and –
|THE ASSOCIATION FOR PROJECT MANAGEMENT
MISS KAREN STEYN QC (instructed by THE TREASURY SOLICITOR) for the Defendants
MR MICHAEL FORDHAM QC AND MR PAUL LUCKHURST (instructed by ALLEN & OVERY LLP) for the Interested Party
Hearing dates: 8 & 9 July 2014
Crown Copyright ©
MR JUSTICE MITTING :
APM and PMI
"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?"
"(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".
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.
"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."
"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."
Apparent bias and pre-determination
"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.
The substantive grounds of challenge
"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."
"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. "
"Any proposal which is rendered controversial by a counter-petition is unlikely to succeed."
"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.