22 Apr Hearing to challenge decision not to implement Windrush recommendations to be heard tomorrow

Deighton Pierce Glynn Solicitors are acting for Trevor Donald, in a judicial review claim, taking place tomorrow, 23 April to 24 April 2024 in the High Court before Mrs Justice Heather Williams.

The claim concerns the recommendations made by Wendy Williams, the Windrush Lessons Learned Review (WLLR) Independent Adviser, in her Windrush Lessons Learned Review report, which looked into reasons why the Windrush scandal happened. Ms Williams made 30 recommendations which the Government said it would implement. This promise was given in Parliament on various occasions and in a document they produced called the Comprehensive Improvement Plan (CIP).

However, in January 2023 the Government announced, in a ministerial statement in Parliament, that it would not proceed with three of those recommendations: Recommendations 3, 9 and 10. These say:

Recommendation 3 – In consultation with those affected and building on the engagement and outreach that has already taken place, the department should run a programme of reconciliation events with members of the Windrush generation. These would enable people who have been affected to articulate the impact of the scandal on their lives, in the presence of trained facilitators and/or specialist services and senior Home Office staff and ministers so that they can listen and reflect on their stories. Where necessary, the department would agree to work with other departments to identify follow-up support, in addition to financial compensation.

Recommendation 9 – The Home Secretary should introduce a Migrants’ Commissioner responsible for speaking up for migrants and those affected by the system directly or indirectly. The commissioner would have a responsibility to engage with migrants and communities, and be an advocate for individuals as a means of identifying any systemic concerns and working with the government and the ICIBI to address them.

Recommendation 10 – The government should review the remit and role of the ICIBI, to include consideration of giving the ICIBI more powers with regard to publishing reports. Ministers should have a duty to publish clearly articulated and justified reasons when they do not agree to implement ICIBI recommendations. The ICIBI should work closely with the Migrants’ Commissioner to make sure that systemic issues highlighted by the commissioner inform the inspectorate’s programme of work.

In the instant claim, Mr Donald challenges this decision to not proceed with the recommendations on the basis that:

1. Although he accepts that the Government is at liberty to take the steps it needs to, in the public interest, such action must be fair. However, in circumstances where the Government has repeatedly undertaken to implement all the recommendations, thereby creating an expectation it will do just that, then decides not to act on that undertaking, and fails to provide any meaningful justification, that amounts to a breach of a legitimate expectation.
2. The decision not to implement the recommendations is discriminatory in nature on the basis on grounds of race and status as a victim of the Windrush scandal.
3. The decision breaches the Home Office’s duty of inquiry which in circumstances like this, where the recommendations were made following the exposure of a scandal affecting a cohort of society, identifiable by reason of their race and status as victims, there needed to be proper inquiry into how not proceeding with implementation of the recommendations would impact on them; and an inquiry into how the decision sat against the Home Office’s admission that mistakes were made in the handling of Windrush cases, that it had learnt lessons from the scandal which it wished not to repeat and was open to scrutiny. Crucially, the decision not to implement the recommendations was made without the knowledge of Wendy Williams, the author of the review report and recommendations.
4. That in making the decision the Home Office have failed to comply with its public sector equality duty. This duty required it to consider, as a start, that the recommendations arose from exposure of a scandal adversely affecting the Windrush cohort and to consider how not proceeding with the recommendations would impact on that group; and if it concluded that the impact would be adverse, to show how it planned to mitigate or eliminate that adversity.

The Claimant is represented by solicitors, Dr Connie N Maina Sozi and Olivia Duffield, and counsel team Phillippa Kaufmann KC, Grace Brown and Elaine Banton.

The court has granted the following organisations permission to intervene:

1. Black Equity Organisation, who are represented by Public Law Project and counsel: Nicola Braganza KC of Garden Court Chambers, Bijan Hoshi, PLP and Christian Davies of 11KBW.
2. UNISON, who are represented by counsel: Karon Monaghan KC and Eleanor Mitchell of Matrix Chambers.

The Speaker of the House of Commons has also been granted permission on the issue of parliamentary privilege, specifically whether the court has jurisdiction over statements made in parliament by ministers such as were made in this case not only to deliver the decision not to implement the recommendations but also the statements earlier in support of the recommendations; and in giving the undertaking to implement them.

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