Adequate consultation under the Equality Act

The year 1689 was a notable one in English history. For, after James II had fled to France, on 23 February Dutch republic stadtholder, William of Orange and his wife Mary, accepted the Crown of England, Ireland and Scotland. And in December 1689, the Bill of Rights came into force which (among other things) subjected regal powers to parliamentary consent and protected parliamentary proceedings. So article 9 provides ‘that the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament’. 

But is such an ancient measure as the Bill of Rights relevant to today’s local government and public lawyers? It is indeed, as a recent Administrative Court decision concerning standards of legally adequate consultation and Equality Act 2010 (EA 2010) duties illustrates. For the public sector equality and other EA 2010 and common law duties permeate all decisions of local authority and other public bodies. The case was R (A and others) v Secretary of State for the Home Department [2022] EWHC 360 (Admin), judgment in which was given by Fordham J on 18 February 2022.

Following the introduction by the secretary of state (SoS) on 24 March 2021 of a policy statement entitled ‘New Plan for Immigration’, the government had initiated a ‘comprehensive consultation and engagement process’ to inform the policy proposals and ‘to ensure we can deliver effective legislative change across the system’. This ran for six weeks and had the following four strands: (i) a consultation questionnaire including a summary of the objectives and a questionnaire response form; (ii) ‘stakeholder deep dives’, consisting of eight events covering different topics including equalities and vulnerabilities; (iii) focus groups with members of the public and; (iv) the ‘lived experience’ forum, consisting of a series of in-depth interviews and discussion groups held with those who have lived experience of the UK asylum system.

The claimants filed for judicial review, arguing that the consultation was indirectly discriminatory (under the following provisions of the EA 2010): sections 19 (indirect discrimination) and 29(6) (prevention of discrimination etc in public service provision) and was also in breach of the public sector equality duty in section 149 of the 2010 act. The consultation was additionally contended to breach common law consultation requirements.

Judicial review permission was refused on papers by Lang J on 11 November 2021 because (among other things): ‘the court cannot interfere with a minister’s decision to lay a bill before parliament, or seek to prevent parliament from considering a bill’ and ‘paragraph 2(1) of schedule 3 to EA 2010 states that section 29 EA 2010 does not apply to preparing, making or considering an act of parliament or a bill for an act of parliament’. Paragraph 4 of schedule 18 to EA 2010 also excludes functions in connection with proceedings in the House of Commons from the scope of section 149 EA 2010. Moreover, Lang J did not consider that the claimants had ‘arguable grounds of challenge’.

The case came before Fordham J as a renewed application for permission for judicial review on the basis that the issues were justiciable (as Fordham J understood it): ‘restricted to impugning the process decision-making as to the design of the consultation and engagement process, and supporting the grant by the judicial review court of a declaration that applicable legal duties were breached in the design of that process (together with consequential damages arising from the indirect discrimination)’ (paragraph 13). However, despite detailed consideration in a 25-page judgment, Fordham J came to conclusions similar to those of Lang J and remarked that article 9 (and other material considerations) ‘set the scene for the consideration of justiciability of the present claim’.

Among the legal authorities considered by Fordham J on justiciability was the Divisional Court decision in R (Adiatu and another) v HM Treasury [2020] EWHC 1554 (Admin). This concerned a challenge to the decision to amend the statutory sick pay scheme by regulations in response to Covid-19 without simultaneously removing the lower-earnings limit which would require an amendment to primary legislation. Following Adiatu (which noted at paragraph 230 that: ‘it would be a breach of parliamentary privilege and the constitutional separation of powers for a court to hold that the procedure that led to legislation being enacted was unlawful’), Fordham J said that a declaration of breach in the design of the parliamentary bill, would ‘clearly constitute a breach of parliamentary privilege and the constitutional separation of powers…’.

As to consultation, the claimants argued that the defendant breached the Gunning principles from R v Brent London Borough Council, ex parte Gunning [1985] 84 LGR 168 (and endorsed by the Supreme Court in R (Moseley) v Haringey LBC [2014] UKSC 56 as ‘a prescription for fairness’). However, Fordham J found this not realistically arguable ‘where the outcome would necessarily be substantive decisions as to the design of a bill to be introduced into parliament’.

As to the EA 2010, Fordham J considered it ‘beyond reasonable argument’ that the ‘EA 2010 duties invoked by the claimants are inapplicable to the function of designing the “consultation and engagement” process which is the focus of the present case’.

Furthermore, as detailed in his judgment, had Fordham J ‘proceeded on the basis that the claim raises justiciable legal standards and applicable legal duties which it is the proper function of the judicial review court to supervise and enforce, [he] would have refused permission for judicial review on grounds of lack of arguability, in agreement with Lang J’. So, if they had cleared the first article 9 justiciability hurdle, the claimants would have failed to leap all the other legal fences.

Nicholas Dobson writes on local authority, public law and governance