Home Office failure to consult lawfully on rejected Windrush recommendations; wider learning about ‘legitimate expectations’

This is Blog no 78

When the Rt. Hon Suella Braverman was Home Secretary, she decided against implementing three of Wendy Williams’ recommendations from the Windrush Learned Lessons Review. This was despite her predecessor – the Rt Hon Priti Patel having told Parliament that she would be "

When the matter came to the High Court this summer, the judicial review found that – in respect of two of the recommendations, the decision was unlawful on several grounds. This blog explores some of the issues arising from this judgment and reflects a continuing concern that Whitehall often drags its feet in response to major public policy scandals.

The treatment of Windrush-generation immigrants and their dependants is, by any standard, an indefensible abuse of power by the State, made even more unjust by the behaviour of the Home Office and its flagrant refusal to listen to key stakeholders and others. The Wendy Williams review was meant to ensure that important lessons were learnt and many of its recommendations have been adopted without controversy.

However, she made three recommendations which were not implemented. One concerned a programme of Reconciliation events; another was the appointment of a Migrants Commissioner and another to review the Remit and Role of the ICIBI (the Independent Chief Inspector of Borders and Immigration). The two-year long history of hesitations, delays and obfuscations leading to the Home Secretary’s decisions is recorded in detail and, in part, reads like the script of Yes Minister. In essence, a body called the Windrush Cross-Government Working Group disagreed with aspects of the recommendations, and whilst it did not openly sabotage them, it found reasons to advise Ministers against implementation. To be fair to Braverman who is often criticised for her views, by the time she became Home Secretary, officials had boxed her in so that she was ‘damned if she did … and damned if she didn’t’.

In the event, Mrs Justice Heather Williams found that promising Parliament that everything would be implemented was not, of itself, conclusive. There was no substantive legitimate expectation, and Courts have been rightly wary of circumscribing politicians’ ability to amend policy in response to events.

However, the test for procedural legitimate expectation is different. It “arises where the law recognises that the claimant's interest in some ultimate benefit which they hope to retain or attain cannot be withdrawn or denied without them first being given the opportunity to make representations.” (per Laws LJ in 2008). It is further elucidated by Hallet LJ in the Plantagenet Alliance case. It’s better known as the King Richard III case where she says it arises "where, in exceptional cases, a failure to consult would lead to conspicuous unfairness"

In the Windrush recommendations case, the Judge found a host of factors leading her to conclude that there was a legitimate expectation of consultation – and that – for two of the three recommendations, on the Migrants Commissioner and the review of ICIBI, the Home Office had not fulfilled it. Specifically, she noted that the whole thrust of the case was that there had been deep-seated reluctance to listen to and understand the concerns of members of the Windrush generation. A failure to implement the recommendations would only ‘compound the sense of injustice that arose from this.’

For good measure the case also found that the failure to consult amounted both to a breach of Article 14 of the European Convention of Human Rights, and also a breach of the Public Sector Equality Duty (PSED) to ‘have due regard’ to the relevant considerations. As such, and unless reversed on appeal, this is an important case highlighting the need for Ministers to be very careful when rejecting expert advice from those appointed to review failures in public policy.

And it is here I find a matter of the greatest potential significance. Do we have a problem responding to such failures?

Consider the long list of embarrassments. Hillsborough; Bloody Sunday; Infected Blood; Phone-hacking; the Grenfell fire and now the Post Office Horizon system prosecutions. The British system seems effective in appointing a suitable member of the great and the good to enquire into what happened, but less sure-footed on responding to their recommendations. Those tasked with investigating are also unsure.

In May 2023, I published a Blog (no.28) under the title: Inquiry Chair objects to a consultation on her recommendations; is she right?. It considered complaints by Professor Alexis Jay OBE that instead of implementing one of her recommendations, the Government risked further delay by holding another consultation. She had spent years undertaking the Independent Inquiry into Child Sexual Abuse, and felt sure she had covered all the appropriate angles. My view, however, was that in the circumstances, the Home Office was acting properly and reasonably and that there was good reason for the extra consultation.     

I detect an echo of similar issues in the recent Windrush case. Wendy Williams clearly took Priti Patel’s commitment to implement everything at face value and maybe underestimated Whitehall officials’ propensity to complicate and confuse when they felt it appropriate.

Ultimately, these were political decisions, and both Home Secretaries, in my view, made two crucial mistakes. One was the failure to appreciate that in a matter as sensitive as Windrush, any delay just reinforces the doubts about the Government’s sincerity. The other, of course was the failure to consult.

The Home Office should not have needed a legal opinion as to whether the circumstances created a legitimate expectation. This was more a matter of good governance. If you have told Parliament that you accept the recommendations and then have second-thoughts, anyone with political nous would instinctively know that the only effective way to back-track would be to say, “We have consulted with these key stakeholders and having conscientiously considered their views, have decided to do something different for the following reasons …”.

The way this actually played out confirmed everything that Windrush campaigners feared – that Ministers and Civil servants were only going through the motions, and “Lessons were not being Learned”

This is another case where it should never have been necessary for a judicial review and that sensible Ministers would have acted promptly to avoid any cause for complaint.

Rhion H Jones LL.B