Farmers, tax relief, and the separation of powers
21 May 2026
By Samuel Talalay
Introduction
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.
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