Parliamentary privilege and evidence in judicial reviews

The High Court has dismissed a judicial review challenging the Home Secretary’s failure to implement the recommendations of the Brook House inquiry. The judgment includes a useful annex addressing an application made by the Home Secretary for an order preventing the claimants from relying on material subject to parliamentary privilege.

The case is R (D1914 & Anor) v Secretary of State for the Home Department [2025] EWHC 1853 (Admin). This was a rolled up hearing to consider both permission as well as the substantive judicial review claim where permission was granted.

Background

The Brook House Inquiry published its report looking at the mistreatment of detainees on 19 September 2023. The report found 19 incidents where there was credible evidence of mistreatment amounting to a breach of article 3. The chair made 33 recommendations to prevent further instances of mistreatment. The government published its response to the inquiry in March 2024.

The judicial review

There were several grounds for the judicial review, including an argument by the claimants that the Home Secretary had failed to discharge the investigative duty imposed by article 3 ECHR, which includes the need to learn lessons and rectify dangerous practices. It was also argued that the failure to implement the inquiry’s recommendations amounted to a breach of the systems duty under article 3.

There were three claimants, one of whom was determined not to have standing to bring the case as he had never been detained at Brook House. Permission was refused in his case but granted for the other two claimants.Three of the grounds, relating to the alleged false imprisonment of AVY, were transferred to the King’s Bench Division.

The Home Office gave evidence to the court that a cross-department group:

had been meeting approximately monthly since September 2023 (‘the BHI Working Group’). Its role was to consider and monitor delivery of the BHI’s recommendations, providing oversight and overarching governance to monitor the BHI’s recommendations.  The minutes of these meetings have been disclosed (‘the Minutes’) and, in my view, it is clear that the Defendant has conscientiously considered the report and the recommendations.

Evidence was also given that:

On 22 May 2025, Dame Angela Eagle DBE MP, Minister for Border Security & Asylum, wrote to Ms Bell Ribeiro-Addy MP providing a further update (‘the Minister’s letter’).  She confirmed that “positive progress continues to be made against the 30 accepted or partially accepted recommendations as set out below, and I am fully sighted on this work.  20 recommendations have been met and closed, with the remaining recommendations on track for closure by summer 2025”.

The court went through each of the recommendations and in light of the evidence from the Home Office, the court accepted that most recommendations had been met or substantially met and where not fully met, any departures were a reasonable exercise of discretion. The recommendations that were rejected, including that a time limit be imposed on detention, were deemed by the court to be a lawful exercise of discretion.

The court also concluded that there was no legal obligation on the Home Secretary to comply with the inquiry’s recommendations. The judicial review was dismissed.

Parliamentary privilege

The Speaker of the House of Commons intervened in the proceedings following an application on 5 June 2025 by the Home Secretary for an order preventing the claimants from relying on parliamentary proceedings, arguing that this was a breach of parliamentary privilege.

There were five categories of material that the claimants sought to rely on:

i) Reliance upon the findings of a Parliamentary Committee;

ii) Reliance upon evidence given to a Parliamentary Committee;

iii) Reliance upon a Government Response to a Parliamentary Committee;

iv) Reliance upon evidence of a report by the National Audit Office; and

v) Reliance upon a written statement by a Minister to the House of Commons.

The government withdrew its objection to category iii) material being relied on after the Speaker’s view was given that the material was not subject to parliamentary privilege. The reasons for this were highly specific though, and centred on the fact that the special inquiry committee in question had ceased to exist after its report “Public inquiries: Enhancing public trust” was published and the government’s response had not been issued as a command paper, as advised in Erskine May. All of the other categories of material were deemed inadmissible because of parliamentary privilege.

The main one that surprised me was the National Audit Office report, but apparently there is authority for the position with the court referring to the case of R (ALX & Ors) v Chancellor of the Exchequer [2025] EWHC 1467 (Admin). In that case, the Divisional Court said that National Audit Office report could not be relied on to establish factual matters where these were not agreed between the parties. In the absence of agreement on the facts in this case, the report was also deemed inadmissible.

Conclusion

I found the annex to the judgment interesting because parliamentary privilege extends much further than I had realised – in particular the fact that the report from the National Audit Office could not be considered does not seem ideal as these often contain a lot of useful information.

As far as the Brook House recommendations are concerned, while the Home Office has asserted that progress is being made to improve many areas, it is difficult to have confidence that real progress is being made as long as the Home Secretary maintains the decision of her predecessor to discontinue the annual Adults at Risk inspection carried out by the Independent Chief Inspector of Borders and Immigration.