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

Where a consultation is undertaken to inform the design of primary legislation for introduction into Parliament, its legality is not justiciable by judicial review. The Gunning standards cannot be separated from the substantive decision which they are intended to inform, because a finding of procedural unlawfulness would logically taint that decision and potentially interfere with Parliament’s process. The same constitutional limitation applies to Equality Act duties concerning the design of the consultation. The position differs in principle for delegated legislation. Even assuming justiciability, consultation requirements remain fact-specific, and a challenge must show clear unfairness in context.

The claimants, asylum seekers from several countries, sought permission to challenge the Secretary of State’s consultation and engagement process for the New Plan for Immigration. They alleged inadequate language provision, restricted access to engagement sessions, indirect discrimination, breach of the public sector equality duty and breach of the common law consultation standard in Gunning (ii).

Lang J had refused permission on the papers. The renewed application raised whether the Court could review consultation undertaken to inform the design of a Bill of primary legislation, and, if so, whether the pleaded grounds were arguable.

1. Permission refused. The claim had no realistic prospect of success. The Court agreed with Lang J’s conclusion, both on justiciability and, alternatively, on arguability.
2. The constitutional principle of Parliamentary privilege and separation of powers prevents the Court from holding unlawful the prior decision-making procedure leading to the design and introduction of primary legislation. A declaration would not avoid that difficulty: it could cast a legal shadow over the Bill, invite Government action and influence Parliament’s process.
3. The Gunning standards are concerned with participation in a decision-making process. Gunning (iv), requiring the product of consultation to be conscientiously taken into account in the ultimate decision, necessarily links the consultation to the substantive decision. The standards therefore cannot be enforced as an isolated challenge to the design of a consultation which culminates in primary legislation.
4. The same reasoning applied to the Equality Act 2010 duties. The public sector equality duty and the prohibition of indirect discrimination could not be invoked against decisions designing the consultation and engagement process for a Bill. Sections 149 and 29, read with the relevant exclusions in Schedules 3 and 18, supported that conclusion.
5. Alternatively, the indirect discrimination ground was not arguable because the consultation’s structure, including stakeholder engagement and lived-experience sessions with interpreters where needed, was a proportionate means of achieving the legitimate aim of speed and simplicity. The public sector equality duty ground was also not realistically arguable.
6. The Gunning (ii) challenge failed alternatively. The required clarity and specificity were fact-specific. The consultation concerned policy proposals requiring primary legislation, not a draft Bill, and there would be opportunities for views to be expressed during the Parliamentary process. No realistic prospect of establishing clear unfairness was shown.
7. The fallback argument concerning proposals potentially capable of implementation without primary legislation was rejected as procedurally late and unsupported by any identified proposal affecting the claimants. The costs of the acknowledgment of service were reduced to £7,500.

High Court (Administrative Court): Lang J refused permission for judicial review on the papers on 11 November 2021. On renewal, Fordham J refused permission.