Joanne Clement and Raphael Hogarth successful in important case on Parliamentary privilege


The High Court has handed down judgment in R (A and others) v Secretary of State for the Home Department [2022] EWHC 360 (Admin), an important case on Parliamentary privilege and the scope of Article 9 of the Bill of Rights.

In 2021, the Secretary of State opened a consultation on her ‘New Plan for Immigration’, a plan for extensive changes to the asylum system. That consultation culminated in the introduction of the Nationality and Borders Bill to Parliament. The Bill is currently before the House of Lords.

The Claimants sought judicial review of the consultation, alleging that the consultation documents provided insufficient information about the Secretary of State’s proposals, and so breached the common law standards in R v Brent Borough Council, Ex p Gunning (1985) 84 LGR 168. They further alleged that, in the design of the consultation (and, in particular, the decision to publish consultation documents in English and Welsh only), the Secretary of State had breached the Public Sector Equality Duty (“PSED”) and the duty not to discriminate in the exercise of a public function under the Equality Act 2010.

The Secretary of State contended that the consultation was not justiciable, because it was part of the process culminating in the introduction of a Bill to Parliament, and so protected by Parliamentary privilege. She also contended that, even if the consultation was justiciable, it was not arguably unlawful: there was sufficient information in the consultation documents to permit an  intelligent response, and publishing the documents in English and Welsh only was justified by the need to avoid undue complexity and delay.

Fordham J accepted the Secretary of State’s case on both justiciability and arguability. In a carefully reasoned discussion of the authorities on Parliamentary privilege and Article 9 of the Bill of Rights, the Court concluded that the procedure leading up to the introduction of a Bill to Parliament is protected by Parliamentary privilege, and so any finding on the consultation would be a breach of Article 9 and the constitutional principle of the separation of powers. The Secretary of State is accountable to Parliament, not to the Courts, for a consultation on primary legislation. 

The Court went on to consider arguability in case it was wrong on justiciability, and found that the Claimants’ grounds were not arguable in any event.

This was a decision on permission to apply for judicial review but, in view of its constitutional significance, the Court granted permission to cite the judgment.

Joanne Clement and Raphael Hogarth acted for the successful Secretary of State.