The Queen (on the application of A, J, K, B and F) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fordham |
| Judgment Date | 18 February 2022 |
| Neutral Citation | [2022] EWHC 360 (Admin) |
| Docket Number | Case No: CO/1936/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 360 (Admin)
Mr Justice Fordham
Case No: CO/1936/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Chris Buttler QC and Eleanor Mitchell (instructed by Duncan Lewis) for the Claimants
Joanne Clement and Raphael Hogarth (instructed by Government Legal Department) for the Defendant
Hearing date: 1/2/22
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HON. Mr Justice Fordham
I. Introduction
This is a case about common law standards of legally adequate consultation, and statutory duties in the Equality Act 2010 (“ EA 2010”), sought to be applied to a consultation and engagement process undertaken to inform decision-making as to the design of a Bill of primary legislation to be introduced into Parliament. The case comes before the Court as a renewed application for permission for judicial review, such permission having been refused on papers by Lang J on 11 November 2021 (see §8 below). The question with which I have to grapple is whether to grant permission for judicial review. In their submissions on the viability of the claim, Counsel addressed me on justiciability and arguability. I will address both topics below. Although this is only the permission stage there is quite a lot which it is appropriate to explain, including about the factual context and about the legal context so far as justiciability is concerned.
This was a half-day hybrid hearing, for which I gave directions. What happened was this. One of the Counsel in the case had tested positive for Covid but they continued to feel well and were able, unhampered, to view, listen and address the Court remotely. Everyone else associated with the parties was in the court-room. I gave permission for the use of mobile phones so that the remote-Counsel's team could communicate with Counsel by the electronic equivalent of a ‘note’ or verbal exchange which is the practice when Counsel is in the court-room. There were some technical issues at Counsel's end – the commonly encountered ‘frozen screen’ – but we simply paused. The hearing worked well. Nothing was missed by anyone.
II. Context
On 24 March 2021 the Defendant (“the Secretary of State”) presented to Parliament a “Policy Statement” entitled “New Plan for Immigration”. The Policy Statement included seven substantive chapters with these titles: “Protecting Those Fleeing Persecution, Oppression and Tyranny”; “Ending Anomalies and Delivering Fairness in British Nationality Law”; “Disrupting Criminal Networks and Reforming the Asylum System”; “Streamlining Asylum Claims and Appeals”; “Supporting Victims of Modern Slavery”; “Disrupting Criminal Networks Behind People Smuggling”; and “Enforcing Removals Including Foreign National Offenders”. In a short chapter, entitled “Engagement and Consultation”, the Policy Statement said this:
To inform the proposals set out in this policy statement and to ensure we can deliver effective legislative change across the system, we are initiating a comprehensive consultation and engagement process which will commence on 24 March 2021. The process will be delivered in partnership with an insight and strategy firm, in line with established principles, as well as taking into account any other relevant statutory duties. As part of this process, we want to listen to a wide range of views from stakeholders and sectors, as well as members of the public. Further details about this process as set out in the information accompanying this publication .
It was therefore explicit that the purpose of the engagement and consultation was to “deliver effective legislative change”. And “legislative” meant primary legislation. And so it was, on 6 July 2021, that the Nationality and Borders Bill was introduced in the House of Commons. Substantive Parts of the Bill were concerned with these topics: “Nationality”; “Asylum”; “Immigration Offences and Enforcement”; “Modern Slavery”; and “Miscellaneous”. The Bill was accompanied by 84-pages of Explanatory Notes, prepared by the Home Office. Subsequently, on 22 July 2021, the Secretary of State presented to Parliament a 22-page document constituting the “Government Response” to the “Consultation on the New Plan for Immigration”.
The “consultation” strand of the “consultation and engagement process” ran for six weeks from 24 March 2021, ending on 6 May 2021. It and the other strands are described as follows in the Secretary of State's pleaded ‘summary grounds of resistance’ (supported by a statement of truth):
The Secretary of State proactively chose to consult and has considered carefully how to conduct this consultation and engagement exercise. She was aware that these proposals would require primary legislation and that, as well as the consultation and engagement exercise …, anyone with an interest in the proposals would be able to raise their views in the ordinary way through their elected representatives as the Bill progressed through Parliament. The final form of any proposals requiring primary legislation will, ultimately, be a matter for Parliament. In this light, the Secretary of State decided to structure the consultation exercise by combining targeted consultation and engagement with stakeholders, with a wider consultation with any members of the public who may wish to contribute. The Secretary of State engaged “Britain Thinks”, an insight and strategy consultancy, to advise on, and deliver, the consultation and targeted engagement plan. Britain Thinks was commissioned as an independent research partner to facilitate core elements of the consultation. The consultation was extensively publicised, and allowed for multiple opportunities, and methods, for participation. A list of relevant stakeholders who are likely to have interest and expertise in the proposals was drawn up, to include relevant oversight and accountability bodies, government agencies and public bodies, industry and suppliers with an interest, professional bodies and academia, Parliamentary bodies and NGOs. Many of these NGOs themselves have built up the experience and expertise to represent the views of those with lived experience of the system .
There were four strands to the consultation. First, a Consultation questionnaire. The questionnaire was delivered via a bespoke platform hosted by CitizenLab on the website domain www.newplanforimmigration.com. The website included a summary of the objectives for the New Plan for Immigration, and information about taking part in the consultation. It also included downloadable PDFs of the New Plan policy statement and UASC family reunion information sheet, plus a questionnaire response form. PDFs were provided in English and in Welsh. The questionnaire was designed with advice from Britain Thinks in order to facilitate the fullest responses. It consisted of 26 closed and 19 open questions relating to different chapters of the New Plan, the UASC Information Sheet, and potential qualities or vulnerabilities impacts of the proposals. There were no character or word limits for the open text questions, as the Secretary of State is keen to ensure full and varied feedback is provided…
Second, “stakeholder deep dives”. This consisted of 8 events, each covering one of the following topics: Safe and legal routes (protection and adult family reunion); Integration; UASC family reunion; Asylum reform; One-stop process; Streamlining appeals and judicial processes; Modern slavery; Equalities and vulnerabilities. The events took place in April 2021. Between 8 and 19 stakeholders were invited to each session, based on those sessions that were most relevant to the stakeholders' area of expertise. The sessions were divided into breakout groups of up to 6 stakeholders per group. Each session focused on specific proposals in the Plan (save for the UASC family reunion session, which gathered stakeholders' broader views)… The Home Office and the Ministry of Justice also held a series of stakeholder consultation events covering the more technical aspects of the proposals, e.g. around reform to British nationality law, rules on expert evidence, legal aid etc…
Third, focus groups with members of the public. Six online focus groups were held, split by age and socio-economic group, and ensuring there was a spread by location across the UK. The online focus groups focused on the five main topics in the New Plan and its overall objectives. The following topics were discussed across the public focus groups: Key objectives of the New Plan, UASC family reunion, safe and legal routes, asylum reform, views on streamlining asylum claims and appeals, views on disrupting criminality and increasing removals of those with no right to be in the UK. These events took place between 17 and 19 April 2021 .
Fourth, the “lived experience” forum. A series of in-depth interviews and discussion groups were held with those who have lived experience of the UK asylum system, including those with experience seeking asylum in the UK and victims of modern slavery… These sessions were planned from the outset. The Home Office identified the groups of participants they would particularly like [to] hear from, who had experience of those parts of the process that would be most likely impacted by the reforms. The Home Office liaised with a number of NGOs who have existing “lived experience” networks, to identify suitable participants and to obtain their support in organising such sessions. These networks included British Red Cross' VOICES network, (an independent organisation run by refugees to help make the...
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