A, J, K, B and F) (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The claim challenged the lawfulness of the Home Office's consultation and engagement conducted to inform the design of primary legislation (the "New Plan for Immigration") by reference to the common law consultation standards (Gunning principles) and duties in the Equality Act 2010 (in particular s.19 read with s.29(6) on indirect discrimination and the public sector equality duty in s.149). The court addressed whether such challenges are justiciable given Parliamentary privilege and the separation of powers, and whether the claim was arguable on its merits.

Key legal principles applied: Article 9 of the 1689 Bill of Rights and the case-law establishing a judicial self-denying ordinance in relation to proceedings in Parliament; the Gunning consultation principles (including Gunning (ii)); and the Equality Act 2010 exclusions which limit the statutory duties so far as primary legislation and proceedings in Parliament are concerned. The Divisional Court decision in Adiatu was treated as determinative on the inapplicability of the PSED and related EA 2010 duties to decision-making procedures that lead to, or prepare, primary legislation.

Material grounds for decision: (1) challenges to the legality of consultation whose object and product is the design of primary legislation are non-justiciable because a declaration that the procedure was unlawful would unavoidably impinge on Parliamentary proceedings or interfere with the introduction and progress of Bills; (2) the Equality Act exclusions and Adiatu mean the PSED and s.29(6)/s.19 do not apply to the functions of preparing, promoting or deciding design for primary legislation; (3) even on the premise of justiciability, the court would have refused permission on arguability because the consultation included multiple engagement strands (stakeholder events, public focus groups, a lived-experience forum with interpreters) and the Secretary of State had plausible and evidenced justification for the design and pace of the exercise.

This was a renewed application for permission for judicial review of the Home Office's consultation and engagement process that informed the Nationality and Borders Bill. The claimants contended the consultation (running 24 March to 6 May 2021) was indirectly discriminatory (EA 2010 s.29(6) read with s.19), breached the public sector equality duty (s.149 EA 2010) and failed common law standards of consultation (principally Gunning (ii)). They sought declarations of unlawfulness, a mandatory order to re-open consultation and damages.

• Background and parties: The Policy Statement "New Plan for Immigration" was published 24 March 2021 and the Nationality and Borders Bill introduced 6 July 2021. The consultation included a questionnaire, stakeholder "deep dives", public focus groups and a "lived experience" forum organised by an external research partner. The claimants are asylum-seekers who complained principally that consultation materials were published only in English and Welsh, that some sessions were invitation-only, and that the documents lacked sufficient specificity.
• Procedural posture: Lang J had refused permission on papers on 11 November 2021. This renewed oral permission hearing took place before Fordham J on 1 February 2022.
• Issues framed by the court: (i) are the challenges justiciable in light of Parliamentary privilege and Article 9 of the Bill of Rights when the consultation was intended to inform primary legislation; (ii) if justiciable, are the EA 2010 duties and Gunning principles arguable and do the claimants have a realistic prospect of success?
• Court's reasoning and outcome: The court held that judicial review of a consultation whose object and product is the design of primary legislation is non-justiciable because a finding that the prior consultation procedure was unlawful would inevitably risk vitiating, interfering with, or casting a decisive legal "shadow" over the parliamentary process (drawing on Adiatu, Wheeler, Unison and related authorities). The Equality Act 2010 exclusions and the Adiatu analysis mean that the PSED and remediable indirect discrimination do not apply to the functions of preparing or promoting primary legislation. The court also considered arguability on the assumption of justiciability and concluded the claim lacked a realistic prospect of success because the consultation had multiple strands (including targeted stakeholder engagement and a lived experience forum with interpreters) and the Government had evidentially justified the design, duration and means of the consultation. Permission for judicial review was refused.

The judgment emphasises the constitutional limits on the courts in relation to Parliamentary proceedings, explains the application of Adiatu and related authority, and records a costs assessment in favour of the Secretary of State in respect of the Acknowledgment of Service.

Permission for judicial review was refused. The court held that challenges to the procedure that led to the design and promotion of primary legislation are, in the circumstances, non-justiciable because a declaration of unlawfulness would unavoidably interfere with Parliament's functions and the separation of powers. The court also held that the Equality Act 2010 duties relied upon do not apply to functions preparing or promoting primary legislation (following Adiatu) and, on the assumption of justiciability, the claim lacked a realistic prospect of success because the consultation included multiple engagement strands which the Secretary of State evidenced and justified.

Permission for judicial review was refused on papers by Lang J on 11 November 2021. This judgment records the renewed application for permission heard before Mr Justice Fordham on 1 February 2022 and again refuses permission. The decision relies extensively on the Divisional Court's reasoning in R (Adiatu) v HM Treasury [2020] EWHC 1554 (Admin) in determining the inapplicability of EA 2010 duties to preparation for primary legislation.