The responsibility for holding the government to account for its failings is the core constitutional role of a range of ‘watchdog’ bodies outside of Parliament, such as inspectorates, commissioners, public inquiries, independent reviews, and ombudsmen.

Accountability is seen as a tool to make and keep governments, agencies and individual officials effective in delivering on their promises. The purpose of public accountability is to induce the executive branch to learn (Bovens).

But the powers of accountability watchdogs to require the executive branch to learn lessons, and implement their recommendations for action, are limited. Much comes down to political persuasion: tipping the balance between the practical pain of doing something and the political pain of being seen to do nothing. There may also be institutional cultural barriers. As Slaven asked of the Home Office with respect to the Windrush Lessons Learned Review, ‘how will lessons be learned by a department whose problem is that it will not engage in learning?’

Against this backdrop, some recent cases in the immigration sphere have illustrated how the courts have imposed legal consequences on government departments consequent to findings and recommendations of accountability watchdogs with no legal powers to enforce their own conclusions. However, recent cases also highlight the limitations of this process of transforming ‘learning into lawyering’. Finally, this post highlights the unique position of the Independent Monitoring Authority for the Citizens’ Rights Agreements as an accountability body with the power to instigate litigation, and the ways in which equivalent powers could greatly enhance the effectiveness of the new Windrush Commissioner.

The Windrush Lessons Learned Review and legitimate expectations of redress

The Windrush Lessons Learned Review was an independent report into the actions and policies of the Home Office which culminated in the Windrush scandal, in which a large number of individuals were falsely labelled as being illegally present in the UK and then subjected to all the attendant consequences of the hostile environment, including the loss of jobs and homes, denial of healthcare, and deportation.

The Lessons Learned Review made 30 recommendations, all of which were accepted in full by the then Home Secretary, and the Home Office published a ‘Comprehensive Improvement Plan’ in 2020 to implement the report’s recommendations. However, in 2023, a new Home Secretary announced that she was abandoning some of the key recommendations, particularly those to introduce a new Migrants’ Commissioner, to review the substantive powers of the Independent Chief Inspector of Borders and Immigration (ICIBI), and to conduct reconciliation events. The reneging on government commitments to victims of the Windrush scandal was challenged through judicial review in R (Donald) v Secretary of State for the Home Department [2024] EWHC 1492 (Admin).

The High Court quashed the decision to not proceed with two of the recommendations (those relating to a Migrants’ Commissioner and the ICIBI) on three grounds. Firstly, that it was an unlawful indirect discrimination on the basis of the obligations arising from the Thlimmenos  judgment, whereby the anti-discrimination clause of Article 14 ECHR may impose a positive duty to treat individuals differently in certain situations. Secondly, there was a breach of the public sector equality duty to have due regard for ‘the likely benefits, in equality terms, which could result from proceeding […] and the nature and extent of the equality implications of deciding not to proceed’ (Donald, [281]). Finally, that there was a breach of procedural legitimate expectations as the decision to renege on the promise to implement the recommendations was done without consultation with stakeholders, including victims of the scandal. The decision to not proceed with reconciliation events was not found to be unlawful on any of the grounds as there was genuine disagreement within the affected community as to whether such events would serve a useful purpose.

In this case, the relevant status for the Article 14 claim was ‘those who had a right to remain in the UK by virtue of section 1(2) of the Immigration Act 1971, who could have obtained British nationality by registration prior to 1 January 1988’ (Donald, [130]) and the protected characteristics engaged by the public sector equality duty was that of race and/or age (Donald, [277]). The racialised background to the Windrush scandal – rooted in the UK’s colonial past, and post-colonial and neo-colonial present – meant that it was not a contentious point between the claimant and defendant in this case that the scandal’s victims fell within groups protected by Article 14 or the public sector equality duty. However, other potential claimant groups affected by other kinds of government maladministration may find these preconditions to be a barrier to repeating the same success where the equality dimensions are not as overt as in Donald.

The Brook House Public Inquiry and putting right the damage

The other recent example of learning to lawyering is from court cases arising in the aftermath of the Brook House Public Inquiry. The inquiry was set up in the wake of revelations in a 2017 BBC Panorama exposé of the mistreatment of individuals at the Brook House immigration detention centre. The creation of a statutory public inquiry was in fact consequent to litigation relating to the specific form of learning mechanism. The Home Secretary had initially commissioned a Special Investigation from the Prisons and Probations Ombudsman, but some former detainees were successful in a High Court challenge arguing that an Ombudsman investigation would not discharge the Home Secretary’s Article 3 ECHR investigatory duties, and that only the statutory powers inherent to a public enquiry would suffice (MA & BB v Secretary of State for the Home Department  [2019] EWHC 1523 (Admin)).

Although statutory public inquiries have greater powers of investigation through the Inquiries Act 2005, their powers to require the implementation of their recommendations are severely limited. The Article 3 ECHR investigatory duty requires that an investigation should be capable of leading to the identification and punishment of those responsible (Gäfgen v Germany). Section 2 of the Inquiries Act 2005 prohibits an inquiry from determining civil or criminal liability, although it can make findings or recommendations from which liability might be inferred. Thus the responsibility for imposing legal consequences is transferred to the courts, and in Adeboyega v Secretary of State for the Home Department [2024] EWHC 2365 (KB) a former detainee at Brook House was awarded over £200,000 in damages for unlawful detention, trespass against the person, psychiatric injury, and breach of EU law and ECHR rights. The High Court in that case found that the Brook House Inquiry report was admissible as evidence in support of the private law claim for damages, stating that there is ‘no general rule prohibiting the use of evidence given in an enquiry in civil or criminal proceedings’. The Article 3 ECHR investigatory duty may well then be met, albeit indirectly.

But the requirement of further litigation to secure individual remedy is not entirely satisfactory. Securing individual damages requires knowledge of one’s legal rights, and the practical and financial resources to bring a claim. Many of those held at Brook House and subjected to inhuman and degrading treatment there may be unaware of relevant developments or have since been removed from the UK, imposing substantial practical barriers to securing access to justice by bringing a private law claim. Furthermore, many of the recommendations of the Brook House Inquiry were about implementing systematic change to prevent future harm, rather than case-by-case redress for the damage to individuals.

The distinct lack of power to enforce the implementation of the recommendations of the Brook House Inquiry was exposed in R (D1914 and AAA) v SSHD [2025] EWHC 1853 (Admin), a judicial review brought by individuals who were held at Brook House or other immigration detention centres and who had suffered harm as a consequence of their treatment there. They were unsuccessful in their claim that failure to implement the Brook House Inquiry recommendations was a breach of the investigatory or systems duties under Article 3 ECHR. The High Court found that there is no legal obligation on the executive to comply with the recommendations of a public inquiry: ‘they are recommendations, not directions’ (D1914 and AAA, [265]).

Unlike the claimants in Donald (the Windrush case), the claimants in D1914 and AAA also failed in a claim on the grounds of legitimate expectations, because the statement relied upon as the basis for their asserted expectation was inadmissible on the grounds of parliamentary privilege, any promises to implement the Inquiry’s recommendations having been made on the floor of the House of Commons (D1914 and AAA, [8]). The scope for transforming learning to lawyering is therefore highly dependent on the vagaries of where and how promises of action are made, with a clear precedent set for legally canny ministers to only make promises for action within the confines of the House of Commons, on the basis that to do so might reduce their long-term exposure to legal accountability. Evidence of this as an emerging practice would add further evidence to the thesis of a decline in parliamentary scrutiny,  as it would suggest that Ministers fear the court’s ability to hold them to their promises, more so than Parliament’s.

AAA was also refused permission in his judicial review claim on the basis of a lack of standing: he had not been held at Brook House Immigration Removal Centre, but at Colnbrook instead, and his argument that the issues addressed by the Brook House Inquiry affected the entirety of the immigration detention estate at that time were dismissed as providing too tenuous a link for the purposes of standing (D1914 and AAA, [84] & [95]). This further underlines the difficulties of using the courts as a means for ensuring the implementation of the kind of systemic learning frequently required by independent reports and inquiries so that incidents of public concern do not happen again in similar sites, be they other detention centres, residential tower blocks, or care homes.

The difference of outcome between D1914 and AAA and Donald is stark, and entirely explicable in narrow legal terms. The claimants in D1914 and AAA did not so neatly fit the characteristics protected by the public sector equality duty or Article 14 ECHR discrimination, and indeed those grounds do not seem to have been argued. In Donald there was a clear and obvious statement retracting a previous commitment to implement specific recommendations of the Windrush report, commitments which were not covered by Parliamentary privilege and thus could form the basis of a legally enforceable expectation.

Yet despite the narrow legal differences, the substance behind both claims is the same: that an independent investigation was set up in light of individuals being mistreated by the state, that investigation found evidence of individual harm and systemic failures, the victims had reason to believe that the state would be held accountable, recommendations were made to provide redress to individuals and correct the systemic, institutional failings, and then nothing fundamentally changed.

D1914 and AAA exposes the limitations of the kind of learning to lawyering process for holding the executive to account for its systemic failings after the conclusion of an independent inquiry or investigation, which did otherwise meet with some success in Donald. Success requires a litigant with standing and sufficient resources to mount a claim, a readily identifiable victim group who can bring themselves under Article 14 ECHR or the public sector equality duty, and/or be able to successfully navigate the narrow technical requirements of procedural legitimate expectations. Even then, if success is obtained on the grounds that promises were reneged without consultation or undertaking an equality impact assessment, then there is no guarantee that the recommendations will in fact be implemented (and we are still awaiting a review of the ICIBI’s powers and the creation of a Migrants’ Commissioner, as recommended by the Windrush report).

The Independent Monitoring Authority for the Citizens’ Rights Agreements as litigant

The Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA) monitors the way in which post-Brexit legal rights of EU citizens are affected by the actions of public bodies in the UK. The IMA has explicit statutory powers to apply for judicial review or act as intervenor in any legal proceedings in order to conduct its role (European Union (Withdrawal Agreement) Act 2020, Schedule 2, para 30). Although the Act gives the power to bring judicial review cases and intervene in others, it is still unable to insist by itself that public bodies implement its conclusions. However, the power to be a litigant in its own right means that its recommendations can become more than just recommendations, so long as it can convince a court of the merits of a case that will effectively transform them into directions. Furthermore, the IMA does not have to find an individual with standing who it can use as a proxy for pursuing action in the courts: a difficult and arguably exploitative exercise.

The power to litigate is demonstrated in R (Independent Monitoring Authority for the Citizens’ Rights Agreements) v Secretary of State for the Home Department [2022] EWHC 3274 (Admin). Accepting the IMA’s arguments, the High Court found that it was unlawful for EU citizens living in the UK to automatically lose their post-Brexit rights if they had pre-settled status (a temporary legal right to reside in the UK) and did not actively apply for settled status (a permanent legal right). Without the power to be a litigant, the IMA’s conclusion that this was unlawful would have remained just a recommendation which the Home Office might or might not have decided was politically important enough to implement, or the IMA would have had to find an individual with pre-settled status and sufficiently compelling and sympathetic to act as its proxy. Instead, the power to litigate meant that the IMA could require the Home Office to implement its conclusions, albeit indirectly through the courts.

The IMA’s power to intervene in litigation brought by others has also been used to significant effect (and more frequently adopted as a litigation strategy by the IMA) in cases at all levels of courts. A simple headcount suggests that where the IMA has intervened, the claimant relying on the Withdrawal Agreement and/or EU law rights has won on five occasions with a further three conceded or settled in favour of the claimant, whereas the claimant only lost on four occasions (with two further cases pending and two with unclear outcomes). A headcount of this kind is limited because it does not fully capture the nuanced dynamics of intervention, not least because the role of an intervenor is not simply to repeat the same legal arguments relied upon by the claimants and so the claimant and IMA’s goals or legal interpretation may not always align. Further research may paint a more complex picture of the IMA’s role as litigation intervenor. However, on this simple headcount, the IMA’s role as intervenor has had a generally positive role in claimants securing positive outcomes.

Comparison between the IMA and other accountability bodies are not exact. The IMA’s role is as watchdog over a clearly defined set of legal rights which individuals already possess. Other accountability watchdogs’ recommendations may more commonly be around the creation of new rights, the creation of new bodies, changes to departmental culture, or matters like reconciliation events or staff training, the implementation of which would traditionally be non-justiciable. Giving comparable powers as held by the IMA to other bodies would therefore not be a silver bullet given their wide ranging, sometimes inherently political, remit. However, the IMA has provided a precedent in the immigration sphere for how the power to act as litigant and intervenor can be used as an important tool by an independent body responsible for holding the executive to account, a tool that might reasonably be extended to other bodies.

The Windrush Commissioner

The new Windrush Commissioner would be a prime candidate for being granted statutory powers to bring litigation and act as intervenor in relevant cases. Victims of the Windrush scandal have defined legal rights under the Windrush Compensation Scheme, and the Windrush generation and their descendants have defined legal rights under UK nationality and immigration law. Issues arising from the interpretation or application of these defined legal rights are likely to affect many people, yet the need for an individual litigant to act as proxy in strategic litigation may be a substantial barrier to securing the legal rights of all within the affected class. Legal aid is not available for claims under the Windrush Compensation Scheme, nor is it available for the majority of immigration and nationality law matters. Given that the legal matters arising out of the Windrush scandal often result in its victims having financial and legal precariousness imposed on them, the only alternatives to legal aid are third party litigation funders, crowdsourcing, pro bono, or relying on strategic litigation by advocacy organisations, all of which are unsatisfactory in their own ways.

Even where individuals are able to bring cases, the Windrush Commissioner would be a potentially powerful intervening voice for the wider public interest. Civil Procedure Rule 54.17 allows ‘any person’ to apply for permission to file evidence or make representation in judicial review proceedings, and the Supreme Court’s rule 24 appears to allow for ‘any official body’ or ‘any person’ to apply for permission to intervene in an appeal, which both suggest that the Commissioner already has the power to act as an intervening party. Whether the terms of reference or other instructions from the Home Office in setting up the Commissioner exclude such actions is unknown. Even if not technically required by the wide formulation of the CPR and Supreme Court rules, granting specific statutory powers like those granted to the IMA (and other bodies such as the EHRC) acts as a signal of both the existence of the power to act as intervenor or litigant and the government’s acceptance that involvement in litigation is a constitutionally valid way for the Commissioner to conduct its accountability role and a politically appropriate use of public money.

Whilst litigation cannot resolve all the issues under the Windrush Commissioner’s remit (just as the IMA uses a range of tools and powers), so long as it is adequately resourced, the power to bring litigation and to intervene in cases of relevance could greatly enhance the Commissioner’s effectiveness.

As the above examples demonstrate, turning learning into lawyering can be an effective way of closing the accountability gap when simple publication of findings and recommendations by government watchdogs is ‘necessary but not sufficient’. An inability to translate recommendations into government action has plagued other accountability actors in the immigration and borders sphere, such as the ICIBI. The Windrush Lessons Learned Review found that ‘implementation and learning from [ICIBI] recommendations is not systematic’ and the ICIBI itself acknowledges that ‘[a]cceptance [of recommendations] is not the same as implementation [and] re-inspections identified that earlier recommendations had been accepted but had not been implemented’. The new Windrush Commissioner will need to find ways of ensuring that his mandate to ‘identify and raise systemic issues across government, advocating for change where it is most needed and holding government to account’ generates meaningful action. Experience suggests that this may be more difficult without robust legal powers, either to instigate litigation or to intervene in relevant litigation brought by others.

I am grateful to Dr Sam Guy and the blog’s editors for comments on a draft of this post. Any errors or omissions remain my own.

Dr Jonathan Collinson is a Lecturer in Law at the University of Sheffield.

(Suggested citation: J. Collinson, ‘From Learning to Lawyering: When Can Political Accountability Have Legal Consequences?’, U.K. Const. L. Blog (11th September 2025) (available at https://ukconstitutionallaw.org/))