Trevor Donald, R (on the application of) v Secretary of State for the Home Department

The claimant challenged the Home Secretary's 7 December 2022 decision not to proceed with parts of the Windrush Lessons Learned Review (

The claimant, a member of the Windrush generation, sought judicial review of the former Home Secretary's decision of 7 December 2022 not to proceed with the implementation of WLLR Recommendations 3, 9 and 10. The claimant argued (i) breach of a substantive legitimate expectation that the recommendations would be implemented; (ii) breach of a procedural legitimate expectation that affected stakeholders would be consulted before any decision not to proceed; (iii) indirect discrimination under Article 14 ECHR read with Article 8 (traditional and Thlimmenos types); (iv) failure of inquiry under the Tameside duty; and (v) breach of the Public Sector Equality Duty in section 149(1) Equality Act 2010. Thornton J had earlier granted permission; the Black Equity Organisation, UNISON and the Speaker of the House of Commons intervened.

The court framed the principal issues as: whether a substantive legitimate expectation arose; whether there was a procedural expectation of consultation and if so whether it was breached; whether the decision amounted to indirect or Thlimmenos discrimination and, if so, whether it was objectively justified; whether the Tameside duty of inquiry was breached; and whether the PSED (s.149 EqA 2010) was complied with.

The court's reasoning, in summary, was:

• Substantive legitimate expectation: the CIP and associated public statements did not contain a sufficiently clear, unambiguous and unqualified promise to implement Recommendations 3, 9 and 10, read objectively in context; no enforceable substantive expectation arose.
• Procedural legitimate expectation: the CIP and surrounding materials created a legitimate expectation that affected stakeholders (including the Windrush community and key actors such as Wendy Williams and the ICIBI) would be consulted before materially changing the announced response. Consultation was adequate in relation to Recommendation 3 (where BIMA reports and other engagement had been undertaken) but was inadequate in relation to the decisions not to proceed with the CIP responses to Recommendations 9 and 10.
• Article 14 discrimination: (a) Recommendation 3 concerned measures expressly aimed at the Windrush community and so could not found indirect discrimination in the usual sense but engaged Thlimmenos-type differential-treatment analysis; the court accepted Windrush victims were in a relevantly different position but concluded the decision not to hold reconciliation events was justified by legitimate aims (notably strong, divergent stakeholder views and the risk of harm). (b) Recommendations 9 and 10 (migrants' commissioner and ICIBI review) were of broader application; the court found a prima facie disproportionately adverse effect on Windrush victims compared with the population at large and that the defendant failed to show objective and reasonable justification for abandoning the CIP responses.
• Tameside duty: the decision-making inquiries were not irrational; no breach of the Tameside duty was made out.
• PSED: the court inferred that the PSED had been considered for the reconciliation-events decision (Recommendation 3) but found insufficient evidence of having due regard to s.149(1) EqA 2010 in respect of the decisions not to proceed with the CIP responses to Recommendations 9 and 10.

The court therefore allowed the claim in part on procedural and equality grounds in respect of Recommendations 9 and 10 and dismissed other grounds, leaving consequential remedies to be addressed.

The claim is allowed in part. The court held that no enforceable substantive legitimate expectation arose from the CIP or associated ministerial statements in relation to Recommendations 3, 9 and 10. There was, however, a procedural legitimate expectation to consult stakeholders before materially changing the CIP response; consultation was adequate as to Recommendation 3 but insufficient in respect of Recommendations 9 and 10. The decision not to implement Recommendation 3 did not amount to unjustified discrimination, but the decisions not to proceed with the CIP responses to Recommendations 9 and 10 amounted to indirect discrimination which the Secretary of State failed to justify. The Tameside duty was not breached. The Public Sector Equality Duty was complied with in relation to Recommendation 3 but not complied with in relation to Recommendations 9 and 10. The court reserved consequential relief issues.