High Court finds decision by Suella Braverman on behalf of the Government to abandon Windrush recommendations, on grounds that it was in the public interest, discriminatory

This judicial review claim, brought by Mr Trevor Donald and intervened by Black Equity Organisation (BEO), UNISON and Speaker of the House of Commons, concerned the Government’s decision to abandon 3 of the 30 recommendations made by Wendy Williams in her Windrush Lessons Learned Review (WLLR) report following exposure of the Windrush scandal. The Government accepted all 30 recommendations and promised to implement them. The 3 recommendations are: Recommendation 3 (to hold reconciliation events), Recommendation 9 (to appoint a Migrants Commissioner) and Recommendation 10 (to consider expanding the role and remit of the ICIBI).

The High Court has found the decision in relation to Recommendations 9 and 10 unlawful but has rejected the Claimant’s claim in relation to Recommendation 3.

We wrote about this case in a previous article, explaining the details of our client’s challenge.

It is important to place this case in context. Successive governments have failed the Windrush generation over and over again: historically, through increasingly restrictive immigration and citizenship law, which impacted (by design) black and brown Commonwealth citizens differently; through the failure to appreciate the status of the Windrush generation when designing and implementing the ‘hostile environment’; through the failure, when confronted with evidence of the harm being wrought upon members of the Windrush generation by ‘hostile environment’ measures, to listen and thus address that harm; through a compensation scheme that Human Rights Watch has found to be unfit for purpose; and finally the decision to abandon these 3 recommendations.

Each failure compounds the injustice of the previous, compounding the sense that the Windrush generation – their history, their lives, their suffering, their voices – are of little consequence, are an afterthought, and that their voices can be easily silenced.

The judgment by Mrs Justice Heather Williams DBE is thus significant in a number of respects. Firstly, the judgment reinforces what is often left unsaid by Government officials when talking about the Windrush Scandal, which is that it was an injustice primarily inflicted upon people with black and brown skin. This should be at the forefront of one’s mind when considering the gravity of the decision to abandon the recommendations arising from the Scandal, and what is required of the Government to justify such a decision. Evidence in this respect included an expert report by Frances Webber, the Vice-Chair of the Institute of Race Relations who found the Government’s decision to abandon the recommendations was tantamount to institutional racism, echoing the Historical Roots of the Windrush Scandal Report, commissioned by the Government.

Further, Mrs Justice Williams found the decision not to proceed with Recommendation 9 and 10 indirectly discriminated against Windrush victims, in breach of Article 14 ECHR read with Article 8 ECHR. The decision was disproportionately prejudicial to Windrush victims because “a cause of the scandal was a failure to listen to the voices of those from the Windrush community” and to be open to external scrutiny, such that the abandonment of recommendations to address those institutional failings would be more keenly felt by them.  As to the Defendant’s attempt to justify the discriminatory impact of the decision, the Judge rejected the submission that she only need be satisfied that it was made in good faith and in the public interest. She found that the Home Office ‘only referenced public interest considerations in the vaguest of terms, with no clear explanation as to how or why the challenged decision was said to be in the public interest’.

In respect of legitimate expectation, the Judge found that the Government was required to consult before abandoning the recommendations. One of the key factors the Judge cited in making this finding was, as above, that a cause of the scandal was a failure to listen to and engage with the Windrush community and its representatives. The Judge found that in respect of Recommendation 9 and 10 there was no consultation with representatives of the Windrush community nor with Wendy Williams, and was thus unlawful.

The Judge further found that the decision to abandon Recommendation 9 and 10 breached the public sector equality duty. In making this finding the Judge considered evidence from Wendy Williams who confirmed that the Government had not consulted her about its intention not to implement the recommendations and from David Neal, former ICIBI, who confirmed that in various meetings Home Office officials had confirmed that Recommendation 10 would be implemented but how later Suella Braverman backtracked on this.

Ultimately, the Judge found that the Government did not act unlawfully in respect of the decision to abandon Recommendation 3. The Claimant is disappointed with this outcome, given the personal significance of the opportunity to speak truth to power – that is, a forum in which he can speak freely to senior Home Office officials about how the Windrush Scandal broke him and to feel that he has been listened to. We know that other members of the Windrush community will feel the same; however we hope that some sense of vindication can nonetheless be found, as the judgment is clear that the voices and experiences of the Windrush community cannot be swept under the carpet entirely – they must be consulted on before abandonment of recommendations, and their impact on them, in light of their experiences of the Scandal, must be properly considered before abandonment of recommendations.

The judgment can be found hereThe Court’s Order can be found here.

The Claimant was represented by solicitors, Dr Connie N Maina Sozi and Olivia Duffield, and counsel team Phillippa Kaufmann KC of Matrix Chambers, Grace Brown of Garden Court Chambers and Elaine Banton of 7BR Chambers.

Black Equity Organisation (BEO) and UNISON intervened.

BEO was represented by Public Law Project and counsel: Nicola Braganza KC of Garden Court Chambers, Bijan Hoshi of PLP and Christian Davies of 11KBW.

UNISON was represented by counsel: Karon Monaghan KC and Eleanor Mitchell of Matrix Chambers.

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