Public Law Case Update Q4 2025

In this spring edition of our quarterly case update, we offer a straightforward and concise overview of five public law and regulation cases from the fourth quarter of 2025 which highlight important points of principle and procedure.

Gowling WLG's team of public law and regulation specialists examine the following cases and identify the key points which can be taken from them. This edition contains some interesting cases on statutory interpretation, the 'no substantial difference test', consultation, the balance between transparency and national security and timing in bringing judicial review challenges:

• The High Court clarifies appointment powers of Chief Constables in statutory interpretation case - R (Chief Police Officers' Staff Association) v Police, Fire and Rescue and Crime Commissioner for Staffordshire.
• Court of Appeal provides further guidance on the 'no substantial difference' test - R (Hippolyte) v Secretary of State for the Home Department.
• High Court reinforces Gunning principles in consultation review - R (National Association of Head Teachers & Anor) v Office for Standards in Education, Children's Services and Skills (Ofsted) & Anor.
• Judicial review clarifies the balance between duties of national security and transparency - R (TPL1) v Secretary of State for Defence.
• High Court confirms the requirement to act promptly in bringing judicial review challenges - R (Hynot Limited) v Secretary of State for Energy Security and Net Zero.

High Court clarifies appointment powers of Chief Constables in statutory interpretation case

In the case of R (Chief Police Officers' Staff Association) v Police, Fire and Rescue and Crime Commissioner for Staffordshire, the High Court held that the Police and Crime Commissioner (PCC) had no statutory power to appoint a "temporary" chief constable under the Policy Reform and Social Responsibility Act 2011 (Act).

The Chief Constable of Staffordshire was suspended in August 2025 due to an independent investigation into alleged misconduct predating his 2021 appointment. The PCC started a recruitment process to appoint a "temporary" chief constable and, in the meantime, asked the Deputy Chief Constable (DCC) to "act up" as Chief Constable.

Following the publication of the advertisement for the temporary post, the Claimant challenged the lawfulness of the proposed appointment by judicial review and advanced four grounds of challenge. Permission was given on only one ground with the matter expedited for hearing. The core question focused on whether the PCC had the statutory authority, either express or implied, under the Act to appoint a temporary chief constable.

The PCC argued that paragraph 14, Schedule 1 of the Act conferred broad supplementary powers on the PCC, allowing any action deemed to facilitate the commissioner's functions, which could include appointing a temporary chief constable.

The High Court considered that the issue was purely one of statutory interpretation and concluded that the Act does not confer any lawful authority, whether express or implied, upon the PCC to appoint a temporary chief constable.

In response to the Claimant's submissions, the High Court;

• emphasised that the supplementary powers are limited in scope and are directed towards powers incidental to matters addressed in Schedule 1 to the Act. For example, practical administrative powers, such as entering contracts and acquiring or disposing of property, rather than appointment powers,
• ·noted that paragraph 14(3) of Schedule 1 explicitly states that the supplementary powers are subject to other provisions within the Act, including therefore sections 38 and 41 of and Schedule 8 to the Act, which provisions set out the statutory process for the appointment of a chief constable and what happens when a chief constable is suspended or incapacitated,
• ruled that Parliament had provided a single route for appointing a chief constable and that where a chief constable is suspended or unable to act, the DCC automatically becomes the acting chief constable by operation of the Act. This express provision leaves no room for creating alternative appointment procedures outside the statutory framework.

Finally, the High Court relied upon the OWD Principle, as articulated in R (OWD Ltd) v HMRC [2019] UKSC 30, emphasising that supplementary powers cannot be used to override or conflict with the statutory scheme. Rather, such powers are designed solely to facilitate the proper exercise of functions within the established statutory framework.

The judge concluded that appointing a 'temporary' chief constable would conflict and undermine the statutory framework as set out by Parliament and accordingly upheld ground 1 of the claim. The judgment provides clarity on the scope and nature of the supplementary powers available to the PCC.

Court of Appeal provides further guidance on the 'no substantial difference' test

The Court of Appeal in R (Hippolyte) v Secretary of State for the Home Department,  considered, in a case concerning indefinite leave to remain under the Windrush Scheme, the application of the section 31(2A) of the Senior Courts Act 1981 (the Act), also known as the 'no substantial difference test'.

The Windrush Scheme, established in 2018, aims to address the injustices faced by Commonwealth citizens and their families who settled in the UK before 1973. Under one particular aspect of the scheme, eligible individuals can apply for documentation confirming their immigration status or for Indefinite Leave to Remain (IRL) in the UK.

The appellant had arrived in the UK as a minor but had some periods of absence. Her application for ILR was refused on the basis that she did not meet the requirement of continuous residence, under category 4 of the scheme.

She challenged that decision by judicial review on two grounds. Firstly, that the Secretary of State (here the Home Secretary) had unlawfully failed to consider whether to exercise their discretion under section 3(1)(b) of the Immigration Act 1871. Secondly, that the appellant was discriminated against, contrary to the Article 14 of the ECHR, read with Article 8 (this second ground was not pursued on appeal).

The High Court accepted that the Home Secretary had breached the non-fettering principle (that is they had unlawfully restricted their own discretion) but refused relief under section 31(2A) of the Act. The judge concluded that it was highly likely the Home Secretary would have reached the same outcome even if discretion had been considered and subsequently dismissed the challenge.

The Court of Appeal considered two key questions, namely (i) whether the Home Secretary had unlawfully fettered their discretion, and (ii) whether the lower court had wrongly refused relief on the basis that it was 'highly likely' the outcome would have been the same even if the Home Secretary had considered whether to exercise that discretion.

It ruled for the appellant on both questions.

In giving its judgment on the 'no substantial difference' question, the Court of Appeal found that the lower court judge had strayed into the 'forbidden territory' of seeking to assess the merits of the Home Secretary's exercise of discretion. It also cited previous cases which had provided guidance on the application of the 'no substantial difference test' and confirmed, among others, that:

• The courts must avoid second guessing the merits of discretionary decisions that have not been made. There should be a focus on the error's impact on the decision-making process actually undertaken.
• If the court cannot tell how the public authority would have approached matters lawfully, the no substantial different test is usually not satisfied.
• Where the legal error is a failure to exercise discretion at all, it is generally inappropriate for the court to speculate on what the outcome would have been. The court should not re-run the decision without the error.

High Court reinforces Gunning principles in consultation review

In R (National Association of Head Teachers & Anor) v Office for Standards in Education, Children's Services and Skills (Ofsted) & Anor, the High Court dismissed a judicial review challenge brought by the National Association of Head Teachers and a primary school headteacher (collectively known as the claimants) against Ofsted's adoption of its new 2025 Education Inspection Framework (the framework).

In response to criticism of its terse assessment of schools as 'inadequate', 'good' etc., Ofsted undertook "The Big Listen", its largest ever consultation, and subsequently launched a formal consultation in early 2025 on the framework.

The framework, set to take effect from 10 November 2025, introduced a five-point scale with narrative across eight evaluation areas with the aim to provide more nuanced feedback, address well-being concerns and provide more information for parents.

The claimants challenged the consultation, including the ground of pre-determination and that it did not allow intelligent responses. Following a 'rolled-up' hearing, the High Court refused permission on all grounds.

In relation to pre-determination, the Court reiterated and applied the Gunning principles as endorsed in R (Moseley) v Haringey LBC including that:

• Consultation must occur when proposals are at a formative stage.
• Sufficient reasons must be given for the proposal to permit intelligent consideration and response.
• The product of the consultation must be conscientiously taken into account when finalising proposals.

There was no evidence that the consultation process was disingenuous or that Ofsted had predetermined its decision before the consultation began. It is lawful to consult on a preferred option, provided the decision-maker remains open-minded, as demonstrated by Ofsted's explicit invitation for consultees to propose alternative ideas.

The Court held that Ofsted explained in sufficient detail the preferred five-point model and alternative models and posed targeted questions to consultees. Consultees engaged with the process and responded intelligently to the consultation, for example, by advocating for a narrative-only scheme.

Ofsted's consultation report was found to have addressed the narrative-only option, explained the rationale behind the five-point reporting system, and engaged with issues concerning workload and well-being. The Court held that the consultation had been conscientiously taken into account.

The Court concluded there was no unfairness so unfair as to be unlawful and subsequently, no breach of the Gunning  principles.

The claimants also applied for an interim injunction to prevent Ofsted from implementing the framework until the judicial review had been determined. The Court held that, even if one or more grounds were considered arguable, it would still have refused interim relief.

The Court emphasised that before granting the relief sought it must consider (i) whether there is a serious issue to be tried and (ii) if so, to determine where the balance of convenience lies.

The Court held that there was no serious issue to be tried and that the balance of convenience was clearly in favour of refusing interim relief. There was a public interest in allowing Ofsted to exercise its statutory functions. Granting the interim injunction would have been highly unattractive and unfair, with the consequences of risking welfare, creating a backlog, and perpetuating the use of previous single-word judgments.

Judicial review clarifies the balance between duties of national security and transparency

In R (TPL1) v Secretary of State for Defence,  the claimant challenged the Secretary of State's (SoS) handling and decision making in the Afghan Relocation and Assistance Policy (ARAP), specifically in relation to the Triples Review.

The Triples were Afghan Partner Forces units that worked closely with UK forces in Afghanistan. Following the UK's withdrawal in 2021, the ARAP scheme was established to relocate eligible Afghan nationals at risk due to their support for UK operations.

However, the decision-making process for Triples applicants under ARAP, particularly under category 4 (case-by-case relocation), was found to be inconsistent and flawed leading to the launch of the Triples Review in early 2024.

The claimant challenged that review on two grounds: that the SoS;

• failed to disclose the scope of the review, and
• failed to publish guidance issued to caseworkers undertaking the review.

On the first ground, the claimant argued that there was insufficient transparency regarding the criteria used to determine whether an application fell within the scope of the Triples Review. Some documents indicated that all applications with credible links to Afghan specialist units were included, while others suggested the review was limited to cases previously referred to UK Special Forces or certain other government bodies.

This conflicting information about the review's scope caused confusion and risked excluding eligible Triples applicants from making informed representations. The Divisional Court held that, given the life-or-death consequences for applicants and the need to restore public trust, it was unlawful not to publish a transparent and accurate statement of the review's scope. Applicants must be able to determine whether they are included and, if not, to challenge their exclusion.

The second ground concerned whether the SoS had unlawfully failed to publish the caseworker guidance, which contained the criteria used to determine the factors for deciding individual review outcomes.

Prior to the claim, the guidance had not been published in any form. The court agreed with the SoS that the guidance referred in places to various military operations and should not be published in full due to national security concerns.

The claimant argued that any applicants represented by their legal team would have an advantage over those that were not as the former could be advised on what to include in their applications as the legal team had seen the redacted guidance. However, the court rejected the claimant's argument that the SoS's disclosure of materials under the duty of candour meant that those materials ought to be placed into the public domain.

However, applying R (Lumba) v Secretary of State for the Home Department, the court held that a summary of the material sections of the guidance disclosed in open proceedings during the claim must be published to ensure fairness and transparency, including guidance on the nature and level of evidence to be included in applications and criteria applied in determining eligibility.

The court noted that, during the proceedings, the SoS agreed to several improvements, including notifying applicants whether they are within scope of the review and of negative decisions, and providing reasons and a right to review.

High Court confirms the requirement to act promptly in bringing judicial review challenges

In R (Hynot Limited) v Secretary of State for Energy Security and Net Zero, the High Court refused permission for a judicial review challenge of the approval of the offshore HyNet carbon capture and storage (CCS) project.

The HyNet CCS project, which seeks to repurpose existing hydrocarbon infrastructure in Liverpool Bay, is designed to store millions of tonnes of carbon dioxide in depleted reservoirs beneath the Irish Sea. The HyNet CCS project is recognised as a central component of the UK's Net Zero strategy.

Hynot Limited challenged the Secretary of State's decision to grant consent for the project under the Offshore Environmental Impact Assessment Regulations 2020. Notably, the company was incorporated just one day prior to the filing of the claim and acts on behalf of a coalition of environmental campaign groups.

The claimant advanced three grounds of challenge, all of which were dismissed by the High Court for failing to meet the necessary threshold of arguability. Additionally, the claim was not brought promptly, and it is on this aspect that we focus below.

In relation to the timing for initiating judicial review, the claimant cited R (Anufrijeva) v the Secretary of State for the Home Departmentwhich established that decisions affecting individuals only take effect upon notification to the individual. On this basis, the claimant contended that the period for challenging the decision commenced on 24 April 2025, the date of its publication. The judge dismissed this argument.

The Court held that the grant of consent for offshore geological gas storage sites was of a wholly different character. Notification of the decision to the developer occurred on 17 March 2025, and the limitation period began from this time; the point at which the legally operative decision was made, not when the claimant was notified. Anufrijeva is therefore limited to cases concerning individuals and does not extend to major infrastructure or public interest decisions.

Secondly, the claimant must comply with the requirement to act promptly, with the Civil Procedure Rules providing a three-month long-stop period in which judicial review claims should usually be brought.

The claimant filed a protective claim on the final day of the three-month long-stop period. The court found this approach incompatible with the obligation to act promptly. It emphasised that major infrastructure projects, such as the CCS project, demand swift action. The judge also noted that decisions regarding Nationally Significant Infrastructure Projects, governed by the Planning Act, are subject to much shorter, six-week challenge windows. Although this project did not fall under those specific regimes, the court highlighted that similarly stringent timescales are warranted when substantial third-party interests are at stake.

Thirdly, the claimant argued that the large volume of documentation justified the delay in commencing proceedings. The court rejected this, stating that the scale of the project did not excuse late action, particularly since detailed disclosure occurs after permission for judicial review is granted. By the end of April 2025, the claimant was aware of the decision and could have filed their protective claim sooner.

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