High Court Clarifies Scope Of Challenges To Consultations On Primary Legislation

• Published date: 06 April 2022
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa and Lara Nassif

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...