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The High Court has clarified that complaints of unfair consultation relating to the introduction of primary legislation cannot found a ground of challenge by way of judicial review (R (on the application of A) v Secretary of State for the Home Department [2022] EWHC 360).

Key points

  • The principles on which the law of Parliamentary privilege is based involve “the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts” and the principle of separation of powers.
  • The Court would offend the constitutional principles of Parliamentary privilege and separation of powers if it concerned itself with complaints regarding a consultation and engagement process relating to the introduction of primary legislation.
  • The statutory duty under the Equalities Act 2010 not to indirectly discriminate and the public sector equality duty under the 2010 Act are not applicable to the "function" of making a substantive decision as to the design of a Bill of primary legislation to be placed before Parliament.

Background

In March 2021 the Secretary of State for the Home Department (the "Defendant") presented to Parliament a policy statement entitled "New Plan for Immigration". The Defendant stated in the policy statement that a comprehensive consultation and engagement process would commence on 24 March 2021. The subsequent consultation and engagement process lasted for six weeks. On 6 July 2021, the Nationality and Borders Bill was introduced in the House of Commons.

On 28 May 2021, the Claimants (a group of asylum seekers from El Salvador, Sudan, Yemen and Eritrea) filed a claim for judicial review which contained three grounds of challenge:

Ground One – The consultation on the New Plan for Immigration was indirectly discriminatory pursuant to sections 19 and 29(6) of the Equality Act 2010 (the "EA") as the consultation documents were published only in English and Welsh.

Ground Two – The consultation was in breach of the public sector equality duty pursuant to section 149 of the EA ("PSED") as certain engagement sessions were invitation-only and did not allow wider participation.

Ground Three – The consultation was in breach of common law requirements for lawful consultation, in particular the Gunning principles derived from R v Brent London Borough Council, ex p Gunning (1985) 84 LGR 168.

Permission for judicial review was refused on the papers, and the Claimants renewed their application for permission at an oral hearing.

Judgment

The Court (Fordham J) dismissed the renewed application for permission on all grounds.

The Court considered first whether the claim was justiciable. This involved consideration of  whether the Court’s supervisory jurisdiction on judicial review extends to the Court 'policing' the Gunning principles in the context of a consultation which was concerned with “delivering effective legislative change” and whose culminating substantive decision entailed the design of a Bill of primary legislation to be introduced into Parliament. The Court concluded that the answer to that question was clearly and beyond reasonable argument “no”.

The Court noted that Article 9 of the 1689 Bill of Rights set the scene for consideration of this topic. Article 9 provides: “That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament”. The Court noted that the principles on which the law of Parliamentary privilege is based involve “the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts”, and that one of the principles on which the law of Parliamentary privilege is based is “the principle of the separation of powers, which in our Constitution …requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature”.

The Court first addressed the third ground of challenge. It noted that it is well established that when a public authority decides to conduct a consultation the Gunning standards are applicable. It is also well established that in principle when a public authority reaches a substantive decision arising out of a decision-making process in which the Gunning standards have been breached, the substantive decision is vitiated. The Court concluded that a declaration that an applicable legal standard was breached in a consultation and engagement process culminating in the operative decisions as to the design of a Bill to introduce into Parliament would constitute a breach of Parliamentary privilege and the constitutional separation of powers.

On this basis it held that the Gunning standards are not applicable to a decision about the design of the consultation and engagement process which led to the introduction of the Nationality and Borders Bill.

In respect of the first two grounds, the Court held that both the EA duties invoked by the Claimants were inapplicable to the function of designing the consultation and engagement process which led to the introduction of the Bill. This was on the basis that it would be a breach of Parliamentary privilege and the constitutional separation of powers for a Court to hold that the procedure that led to legislation being enacted was unlawful. This resulted in the actions by a Government body leading up to the making of primary legislation (including decisions as to the design of the consultation and engagement process) not being within the "functions" of a public authority to which the PSED applies.

The Court went on to conclude that even if it had found the matters to be justiciable, it would have refused permission for judicial review on lack of arguability of all three grounds.

Comment

The High Court's decision reaffirms the importance of the concepts of Parliamentary privilege and the constitutional separation of powers when considering the scope of the Court's supervisory jurisdiction.

The Court noted that the approach to the question of justiciability in case law recognises that responsibility for considering standards and accountability in relation to those standards is a responsibility of Parliament. The Court does not have a role of identifying legal standards and enforcing them (albeit they would be identified and enforced in the context of decision-making culminating in delegated legislation) so as to identify procedural impropriety in the lead up to primary legislation, for the purpose of informing Parliament or members of Parliament or informing public debate. That would be an act of interference which the Court's "chosen, self-denying ordinance" based on the constitutional principles of the separation of powers and the rule of law inhibits it from undertaking.

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Andrew Lidbetter

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Jasveer Randhawa

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Key contacts

Andrew Lidbetter photo

Andrew Lidbetter

Consultant, London

Andrew Lidbetter
Nusrat Zar photo

Nusrat Zar

Partner, London

Nusrat Zar
Jasveer Randhawa photo

Jasveer Randhawa

Professional Support Consultant, London

Jasveer Randhawa
Lara Nassif photo

Lara Nassif

Pro Bono Counsel, London

Lara Nassif
Andrew Lidbetter Nusrat Zar Jasveer Randhawa Lara Nassif