We use cookies to enhance your browsing experience. If you continue to use our website we will take this to mean that you agree to our use of cookies. If you want to find out more, please view our cookie policy. Accept and Hide [x]
This decision, arising from the long running Under Cover Policing Inquiry (“UCPI”), was the first time a Court has heard full argument about the extra-territoriality of a notice issued under section 21 Inquiries Act 2005 (the “IA”). Simply put, the Court decided that an Inquiry Chair does have the power to issue a s21 notice to a person residing overseas. This represents a departure from the approach of previous public inquiries.
A Court of Appeal panel of five Judges, including the Lady Chief Justice, Lady Carr LCJ, the Master of the Rolls, Sir Geoffrey Vos, the Vice President of the Court of Appeal (Criminal Division), Edis LJ, and Lewis and Whipple LJJ has overturned the Divisional Court’s decision quashing the proscription of Palestine Action, holding that it erred in its approach both to the challenge brought under the Home Secretary’s relevant policy and to whether a fair balance had been struck with reference to the rights to freedom of expression and freedom of assembly and association under Articles 10 and 11 of the European Convention on Human Rights.
This article takes an extended look at the reasoning in this decision.
On its face, R (on the application of Martin) v the Chancellor of the Exchequer [2026] EWHC 1123 (Admin) was a garden variety public law challenge to a government consultation on two technical forms of tax relief for agricultural property. It features on this blog, however, because of its contribution to the caselaw on the proper constitutional limits on the jurisdiction of the courts vis-à-vis the two other branches of the state, especially Parliament.
Case overview
The three Claimants – two farmers, a father and son, and an unincorporated association set up in 2025 to advance agriculture and farming through good governance practices and tax policy – sought permission to apply for judicial review of a technical consultation conducted by HMRC designed to elicit views on a specific aspect of the government’s proposals for reforming tax relief on agricultural property. Those proposals were eventually incorporated as legislative measures into what is now the Finance Act 2026. At the time of the hearings, on 17-18 March 2026, the legislation was in the form of the Finance (No 2) Bill 2025-26 and was still awaiting Royal Assent.
At its core, the Claimants’ case was that the government had promised to consult on changes to Agricultural Property Relief (“APR”) and Business Property Relief (“BPR”) but had failed adequately to do so (see [5]). The consultation process, they claimed, was therefore unlawful. They sought a declaration to that effect by way of relief.
Both the first and second Defendants – the Chancellor of the Exchequer and HMRC – denied that the Claimants had a legitimate expectation of consultation, and resisted the three other grounds of review advanced (see [32]). They also denied that the third Claimant had standing to bring judicial review proceedings and argued that, in any case, the claim was brought out of time.
More interestingly, for our purposes, they also argued that the issues raised by the claim were non-justiciable both because of their essentially political character and for reasons of parliamentary privilege. The Office of the Speaker of the House of Commons took the lead on making submissions that the claim trespassed on parliamentary privilege and was therefore non-justiciable.
Whipple LJ and Fordham J sat as a divisional court for a rolled-up hearing to consider both permission and substantive judicial review proceedings, handing down judgment on 12 May 2026.
Parliamentary privilege
The law
A decision might benefit from parliamentary privilege, such that it falls outwith the Court’s jurisdiction, because of Article IX of the Bill of Rights 1689, which 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.”
The sort of thing which Article IX precludes from being ‘impeached or questioned’ by the courts was examined by the Supreme Court in the case of R v Chaytor [2010] UKSC 51 at [47]:
[T]he principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.
While the idea of ‘speech and debate’ in Parliament is self-explanatory, then, Chaytor sets out two questions which must be answered in order to determine whether something outside the Houses and committees – something which, in Whipple LJ’s words at [83], is “incidental to the core or essential business of Parliament” – counts as a ‘proceeding in Parliament’ and therefore attracts parliamentary privilege:
What is the nature of the connection between the matter in question, on the one hand, and the core and essential parliamentary business within the Houses and committees, on the other?
Given that connection, would a failure to extend privilege to that matter adversely impact on the core and essential business of Parliament?
A matter might nonetheless be protected by parliamentary privilege, and therefore be non-justiciable, even if it is not protected by Article IX: R (SC) v Secretary of State for Work and Pensions at [164]-[165]; Prebble v Television New Zealand Ltd [1995] 1 AC 321.
In her judgment, Whipple LJ put it this way, at [105(i)]:
Parliamentary privilege goes wider than merely protecting proceedings once they are initiated in Parliament. It encompasses the comity between Parliament and the courts, based on mutual respect and the separation of constitutional powers.
The parties’ submissions
The Claimants relied heavily on Chaytor to support the contention that parliamentary privilege should not be accorded overly liberally and to buttress the argument that the target of the judicial review, HMRC’s technical consultation, could not be said to be a proceeding in Parliament. As such, the Court was not precluded by Article IX from adjudicating on its lawfulness.
They argued that the courts had taken a wrong turn in a key line of caselaw – beginning with R (Adiatu) v HM Treasury [2020] EWHC 1554 (Admin) – which decided in unequivocal terms, but without reference to Chaytor, that parliamentary privilege could, and in those cases did, attach to government decisions taken en route to subsequent parliamentary proceedings.
The Speaker conceded that Chaytor was indeed authority for the meaning of ‘proceedings in Parliament’ in the context of Article IX, but argued that the Claimants were mistaken in identifying the scope of that term as the key issue in this case.
This case turned, instead, on two separate questions, corresponding to the periods of time before and after the introduction of the Finance Bill, respectively.
Until 2 December 2025 at the very latest, when the Finance Bill was introduced to Parliament, the question was whether a challenge to the technical consultation, which led to measures included in the Finance Bill, would be non-justiciable for wider (i.e. non-Article IX) reasons of parliamentary privilege.
At the time of the hearings, when the Finance Bill was awaiting Royal Assent, the question was whether the Court, in considering the lawfulness of the technical consultation which led to measures included in the Finance Bill – itself undoubtedly a proceeding in Parliament – could be said to be impeaching or questioning those proceedings.
As to the first question, the Speaker’s submission was that the Claimant’s challenge was non-justiciable because, if successful, it would necessarily delay the laying of the Finance Bill, which would constitute an impermissible interference with Parliament. This was the clear position from the impugned line of case law that the Claimants sought to persuade the court to overturn. Those cases were not decided incorrectly and did not err in failing to cite Chaytor. Whereas Chaytor was authority for the scope of ‘proceedings in Parliament’, that question was not in issue in the impugned line of authorities beginning with Adiatu, which instead dealt with the question, entirely pertinent in this case, of when judicial proceedings could be said to encroach impermissibly on territory that was the constitutional preserve of Parliament.
As to the second question, the Speaker argued that the Court undoubtedly would be impeaching or questioning proceedings in Parliament by accepting jurisdiction in this case. The Speaker relied in particular on the case of R (A and Others) v Secretary of State for the Home Department [2022] EWHC 360 (Admin), in which Fordham J had previously concluded, at [26], that:
[a] declaration from a judicial review court, declaring that the consultation which preceded the Bill and informed its design was unlawful would—even if the court bent over backwards to make very clear that that was the scope and extent of its judgment and its declaration—clearly raise questions about whether some step ought to be taken in light of that conclusion of law by the court.
Even if the Court’s conclusion did not involve the government taking “some step”:
the court’s judgment [would] instead cast a legal ‘shadow’ over the product of the consultation. That shadow would, in my judgment, itself stand – in the circumstances of the present case – as an interference in the parliamentary process. The court would, unmistakably, have concluded that the ‘product’ of the consultation was legally ‘tainted’.
The Speaker argued that the Court’s consideration of HMRC’s technical consultation would similarly cast a legal shadow over the Finance Bill and thereby fall foul of Article IX.
The decision of the divisional court
The merits, the timing, and the political character of the decision under challenge
The Court refused the Claimants permission to apply for judicial review, finding that their substantive claim was unarguable: there never was any legitimate expectation to a consultation of the sort claimed by the Claimants (see [10]). It also held, at [71]-[79], that the claim was brought out of time.
The Court declined to rule on the second Defendant’s contention that the subject matter of the claim was – in Whipple LJ’s words at [47(i)]) – “quintessentially political” and therefore outside its jurisdiction. In R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin), the Court was prepared to say that a government promise to hold a referendum on the UK’s accession to the Treaty of Lisbon was precisely the sort of question on which the judiciary was ill-suited to adjudicate. Whipple LJ limited herself to the observation, at [113], that “it is an open question whether a similar analysis [to the one in Wheeler] would apply in the context of a promise of consultation relating to a tax policy change.”
Parliamentary privilege
The Court did, however, explore the question of parliamentary privilege in some detail, devoting almost a quarter of the judgment, from [80]-[110], to the subject.
The Court declined the Claimants’ invitation to overhaul the authorities on the question of parliamentary privilege generally, instead accepting the Speaker’s submissions.
The Court also agreed with the Speaker, at [110], that the Finance Bill was incontrovertibly a proceeding in Parliament at the time of the hearings and that to hear the Claimant’s challenge to the technical consultation would plainly impeach or question that proceeding in Parliament. As such, Article IX of the Bill of Rights 1689 prohibited the Court from considering the claim.
Samuel Talalay is a pupil barrister at 1 Crown Office Row.
The Speaker was represented by David Manknell KC and Rajkiran Arhestey of 1 Crown Office Row, neither of whom were involved in the writing of this post.
In R (Anaesthetists United Ltd and Others) v General Medical Council [2025] EWHC 2270 (Admin) (“Anaesthetists United”), Mrs Justice Lambert dismissed a judicial review claim brought by the claimants against the defendant regulator for Physician Associates (“PAs”) and Anaesthesia Associates (“AAs”) – collectively referred to hereafter as “Associates” – in the UK.
The claim is the most recent instalment in a brewing saga over the continued use and regulation of Associates in the UK’s healthcare system:
In April 2025, Lambert J dismissed the British Medical Association (“BMA”)’s judicial review challenge (R (British Medical Association v General Medical Council [2025] EWHC 960 (Admin)) to the GMC’s decisions to (i) apply the same basic professional standards to doctors and Associates, and (ii) refer to all three professions collectively as ‘medical professionals’.
Just prior to the handing down of Anaesthetists United, Professor Gillian Leng released her final report following the conclusion of her independent review into the Associate professions.
Public inquiries have proliferated in recent years. There are currently over 20 underway in the UK. That is twice as many as in 2005 when the Inquiries Act came into force. The four new statutory inquiries initiated so far in 2025 cover a diverse range of subjects: the horrific attacks in Nottingham in 2023 and Southport in 2024, the long-running grooming gangs’ scandal, and the infamous Battle of Orgreave in 1984 in which violent clashes occurred between striking miners and the police.
Personal data is intimately connected to privacy (art 8, ECHR) but is regulated by specific data protection regimes, such as the UK GDPR. Attention-grabbing legal issues arising out of Big Data dominate the public discourse around data protection: can generative AI use datasets without breaching intellectual property laws; how should the NHS use its mass of personal data; should we be compensated for the value of the data we provide to tech companies who go on to use it in advertising.
But on the other end of the scale from big data claims sits what might be thought of as ‘small data’ – issues around the use of one individual person’s data and the sometimes serious effects that can have. Jasper Gold joins Lucy McCann in a new episode of Law Pod UK to discuss the intersection of data protection, distress and personal injury, and consider some of the legal and tactical issues for litigants involved in these claims.
Brown v Commissioner of the Police of the Metropolis & Anor(2016), Claim No. 3YM09078 (at first instance) and [2019] EWCA Civ 1724 (in the Court of Appeal, on the issue of qualified one way costs shifting)
R ((AAA) Syria and Ors) v Secretary of State for the Home Department[2023] UKSC 42
The Government’s flagship policy of removing individual asylum seekers to Rwanda for their claims to be decided under the Rwandan asylum system that was announced on 14th April 2022 has been found to be unlawful by a unanimous Supreme Court.
The Claimants were 10 individual asylum-seekers who entered the UK irregularly in small boats, together with one charity, Asylum Aid. There were also several interveners to the case, including the UN High Commissioner for Refugees (UNHCR) (whose counsel team was led by Angus McCullough KC of 1 Crown Office Row). The Home Secretary (whose counsel included Neil Sheldon KC and Natasha Barnes of 1 Crown Office Row) was the Defendant.
In December 2022, the Divisional Court (Lewis LJ and Swift J) dismissed the general challenge to the policy, as discussed here. But in June, the Court of Appeal, by a 2-1 majority (Sir Geoffrey Vos MR and Underhill LJ) found that the policy was unlawful, as discussed here.
The Supreme Court (Lord Reed P, Lord Hodge DP, Lord Lloyd-Jones, Lord Briggs and Lord Sales), in a judgment jointly authored by Lord Reed and Lord Lloyd-Jones, has now held unanimously that the policy is unlawful on the basis that there are substantial grounds for believing that asylum seekers would face a real risk of ill-treatment by reason of refoulement (forcible return) to their country of origin if they are removed to Rwanda.
R ((AAA) Syria and Ors) v Secretary of State for the Home Department[2023] EWCA Civ 745
The Claimants in this case are 10 individual asylum-seekers from Syria, Iraq, Iran, Vietnam, Sudan and Albania who entered the UK irregularly by crossing the English Channel in small boats, together with one charity, Asylum Aid.
In Episode 178 Emma-Louise Fenelon speaks to Shahram Sharghy and Jo Moore about how to become a barrister. The episode considers the kind of research that is essential to do in advance, navigating the pupillage gateway, preparing for interviews, and dealing with rejection.
Conor Monighan brings us the latest updates in human rights law
Credit: the Guardian
In the News:
The Joint Committee on Human Rights (JCHR) has concluded that indefinite detention in immigrations centres must cease. The Committee published a critical report into the issue, which found indefinite detention has a highly detrimental impact upon detainees’ mental health.
The Committee argued that individuals should be held for no more than 28 days. It said this would provide an incentive to the Home Office to speed up case management, thereby reducing costs. Harriet Harman MP, the JCHR’s Chairwoman, noted in an article that the Home Office has paid £20 million over five years to compensate for wrongful detentions. Continue reading →
Conor Monighan brings us the latest updates in human rights law
In the News:
Credit: The Guardian
The Government is considering whether to abolish prison sentences lasting six months of less.
Rory Stewart, the Prisons Minister, has argued that short jail terms are only serving to increase crime by mixing minor offenders with hardened criminals. He cited research suggesting that community sentences may help reduce the risk of reoffending when compared to short term prison sentences.
In Scotland there is already a presumption against such sentences. Re-offending has fallen to its lowest level for nearly two decades and the Scottish government are looking to widen the scheme.
The change would impact upon around 30,000 offenders, helping alleviate pressure on the overburdened prison system. Exceptions would be made for offenders who were violent or had committed sexual crimes.
The suggestion has already proven controversial. The Ministry of Justice has emphasised it is only exploring options and no decision has been made.
Conor Monighan brings us the latest updates in human rights law
Credit: The Guardian
In the News:
The legal battle between Sir Cliff Richard and the BBC has begun in the High Court.
In August 2014, police raided Sir Cliff’s home based on an allegation of historic child sexual abuse. The BBC broadcast live footage of the raid filmed from a helicopter. The singer was interviewed under caution, but never charged.
Sir Cliff alleges that the BBC’s coverage of the police raid on his home was a serious invasion of his right to privacy, for which there was no lawful justification. He also alleges breaches of his data protection rights. The singer seeks substantial general damages, plus £278,000 for legal costs, over £108,000 for PR fees which he spent in order to rebuild his reputation, and an undisclosed sum relating to the cancellation of his autobiography’s publication. He began giving evidence on the first day of the hearing. Continue reading →
Conor Monighan brings us the latest updates in human rights law
The High Court, Court of Appeal and Supreme Court are not sitting at present (Easter Term will begin on Tuesday 10th April). Accordingly, this week’s Round Up focuses largely on the ECHR.
This week, the ECHR held that requiring defendants to have legal representation does not violate Article 6. The vote was split by nine votes to eight.
The applicant, a lawyer by training, alleged a violation of Article 6 s.3(c) of the Convention. This was on the basis of a decision by Portuguese domestic courts which (i) refused him leave to conduct his own defence in criminal proceedings against him, and (ii) required that he be represented by a lawyer. Continue reading →
There is no general immunity for police officers investigating or preventing crime. In this case, Mrs Robinson suffered injuries when two police officers fell on top of her, along with a suspected drug dealer resisting arrest. The officers had foreseen Williams would attempt to escape but had not noticed Mrs Robinson (who was represented by 1 Crown Office Row’s academic consultant Duncan Fairgrieve).
The recorder found that, although the officers were negligent, Hill v Chief Constable of West Yorkshire [1989] gave them immunity from negligence claims. The Court of Appeal ruled the police officers owed no duty of care, and even if they did they had not broken it. It also found most claims against the police would fail the third stage of the Caparo test (i.e. it would not be fair, just and reasonable to impose a duty of care upon the police in these situations). The Court found Williams had caused the harm, not the police, so the issue was based on omission rather than a positive act. Finally, even if officers had owed the Appellant a duty of care, they had not breached it.
Mrs Robinson appealed successfully to the Supreme Court.
R (o.t.a. Western Sahara Campaign UK) v. HMRC and DEFRA, Court of Justice of the European Union, opinion of Advocate-General Wathelet, 10 January 2018 – read here
The A-G has just invited the CJEU to conclude that an EU agreement with Morocco about fishing is invalid on international law grounds. His opinion rolls up deep issues about NGO standing, ability to rely on international law principles, justiciability, and standard of review, into one case. It also touches on deeply political, and foreign political, issues, and he is unapologetic about this. That, he concludes, is a judge’s job, both at EU and international court level – if the issues are indeed legal.
The opinion is complex and I summarise it in the simplest terms. But here goes.
This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.
Our privacy policy can be found on our ‘subscribe’ page or by clicking here.
Recent comments