In R (A and Others) v Secretary of State for the Home Department [2022] EWHC 360 (Admin), Mr Justice Fordham refused permission for a judicial review challenge to the consultation on the Home Office’s New Plan for Immigration.

The judgment’s lengthy discussion of whether the issue was justiciable will be of interest to public lawyers. Given that it was held not to be, the immigration law and refugee rights community will have to think about the approach to take to similar consultations in future.

The New Plan

The Home Secretary presented the New Plan for Immigration policy statement to Parliament on 24 March 2021. It provided for a process of consultation and engagement to inform the proposals and the subsequent legislation, which became the Nationality and Borders Bill currently before Parliament. 

The core, radical proposal at the heart of the policy statement is that asylum claims from people who arrive illegally will be treated as inadmissible and, if they cannot be removed to a safe country, at most granted a new form of temporary protection status for no longer than 30 months. This would come with no right to settlement and restrictions on family reunion and access to public funds.

The challenge

The claim was brought by five people with lived experience of the asylum system. They sought a declaration that the arrangements for the consultation were indirectly discriminatory and violated the public sector equality duty under the Equality Act 2010; and breached common law rules on conducting consultations (known as “Gunning” standards). They also originally sought a mandatory order requiring the Home Secretary to re-open the consultation, but this was not ultimately pursued.

The claim focussed on the fact that the consultation documents were only in English and Welsh, and that certain engagement sessions were invitation only and did not allow for wider participation (including by the claimants themselves). There were also a series of points alleging that the consultation breached the second Gunning principle that “the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response”.

Before looking at whether the claim was arguable, Fordham J considered whether the government’s decisions about the consultation and engagement process were amenable to judicial review at all (whether they were justiciable).

Justiciability 

The judge observed that granting the declaratory relief sought by the claimants could either disrupt the passage of the Bill through Parliament (e.g. if the government decided it was necessary to re-open the consultation) or would “cast a legal ‘shadow’ over the product of the consultation”.

This would interfere in the Parliamentary process and so offend against the prohibition in Article 9 of the 1689 Bill of Rights that proceedings in Parliament “ought not to be impeached or questioned in any court or place out of Parliament”.

Hence, it was not 

… arguable, with a realistic prospect of success, that the Gunning standards are legal standards engaging the supervisory jurisdiction of the judicial review Court in these following circumstances: where Government has chosen to undertake a “consultation and engagement process”, for the purposes of “delivering effective legislative change”, where the outcome would necessarily be substantive decisions as to the design of a Bill to be introduced into Parliament…

Fordham J also held that the actions of a government department leading up to the making of primary legislation are not within the “functions” of a public authority to which the public sector equality duty and the duty not to indirectly discriminate under the Equality Act 2010 applied. In addition, the Equality Act provides for specific exclusions in relation to Parliamentary proceedings.

Arguability

Despite finding that the claim was not justiciable, the judge went to consider whether it would have been arguable on the merits if the consultation decisions had been amenable to judicial review.

In relation to the public sector equality duty, Fordham J accepted that the Home Office had taken adequate steps to mitigate the disadvantage faced by people who do not speak English. These included encouraging engagement from stakeholders representing groups affected by the proposals, and a “lived experience forum” with interpreters provided by the Home Office. For similar reasons, these mitigating steps were held to be sufficient to defeat the claim for indirect discrimination.

The common law consultation ground was also found to be unarguable. This was essentially because this was a consultation on a policy statement to inform primary legislation: “there would be an opportunity for views to be made known on legislative proposals as these progressed through Parliament”.

Conclusion

This judgment clarifies that consultation and engagement processes to inform primary legislation are not amenable to judicial review. 

The situation is of course different in relation to secondary legislation: such legislation is made by the executive and is amenable to judicial review, and so are consultation and engagement processes that inform it.

What then to do about consultations like the New Plan for Immigration? If the process is essentially a farce and the government is hell-bent on doing what it wants and not genuinely prepared to listen, there may be a respectable argument for simply boycotting it. As against that, one would hope that even the most truculent of government departments might be prepared to listen to reason and, if not, that improvements can be made at the stage that legislation is scrutinised by Parliament.

As for the Nationality and Borders Bill, lawyers and refugees rights groups will need to mobilise and work together to challenge this at every stage of its implementation.