In this next look at cases from 2025, we offer a straightforward and concise overview of six public law and regulation cases from the second quarter of 2025 which highlight important points of principle and procedure.
Our team of public law and regulation specialists examine the following cases and identify the key points which can be taken from them. This edition features notable cases on consultation; the intensity of the court's review of a public authority's decision not to follow policy; private acts with public consequences; and an update on the 'no substantial difference' test:
- When does engagement with relevant stakeholders constitute a formal consultation? – R (National Council for Civil Liberties) v Secretary of State for the Home Department [2025] EWCA Civ 571
- Scenarios where there is no general duty to re-consult and consideration of consultation responses – R (Possible (the 10:10 Foundation) and Ors) v Secretary of State for Transport [2025] EWHC 1101 (Admin)
- Intensity of review when scrutinising reasons for not following policy or guidance – R (Duke of Sussex) v Secretary of State for the Home Department [2025] EWCA Civ 548
- An important indirect consequence for the public will not, by itself, turn an otherwise private act into a public function for the purposes of the Human Rights Act 1998 – R (Tortoise Media Ltd) v Conservative and Unionist Party [2025] EWCA Civ 673
- Further clarification on the 'no substantial difference' test – R (Bradbury) v Brecon Beacons National Park Authority [2025] EWCA Civ 489
- A consideration of procedural unfairness and inadequate reasoning – R (TJ Trading Express Ltd) v Secretary of State for the Home Department [2025] EWHC 1274 (Admin)
When does engagement with relevant stakeholders constitute a formal consultation?
In R (National Council for Civil Liberties) v Secretary of State for the Home Department, the claimant challenged, among other things, the consultation which preceded the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (the Regulations).
In December 2022, the Home Office undertook a series of meetings and communications with representatives of various policing bodies to discuss what became the Regulations.
The claimant argued that this engagement constituted a voluntary consultation process which, in line with R (Coughlan) v North & East Devon Health Authority, had to be conducted 'properly'. The Home Office had not done so as it failed to engage with anyone representing the interests of protesters. The consultation was therefore unfair as it was wholly one-sided.
The claimant accepted that the alleged unfairness did not involve a breach of the Gunning principles as summarised in Coughlan (that consultation should be carried out at a formative stage, provide sufficient information and time to admit of intelligent responses and take those responses into account), as those principles are not directed to the question of who should be consulted.
The claimant instead argued that Gunning was not intended to be an exhaustive statement of what fairness requires, and that the underlying principle of fairness extended to the choice of persons to be consulted.
The Secretary of State argued that the meetings and communications held on the proposed Regulations did not constitute a consultation which attracted the requirements of fairness, but was a 'targeted engagement' with other public authorities of the type that ministers routinely undertake.
At first instance, the Divisional Court found for the claimant.
The Court of Appeal disagreed. It agreed with the Home Office that the engagement with policing bodies was not a formal consultation but rather operational engagement typical of government policymaking.
The Court of Appeal rejected the Divisional Court's interpretation of R (Eveleigh) v Secretary of State for Work and Pensions. It was not authority for the proposition that choosing to seek the views of an interested party at the formative stage of a 'sufficiently crystallised' proposal, which affects the rights of a particular group, must be treated as the undertaking of formal consultation, such as to render selective consultation potentially unfair.
Whether such a process constitutes a formal consultation should instead be judged by a wider assessment of the purpose and character of the process.
In this case, the Government did not seek to gather arguments for and against the proposals from a range of affected parties. Rather, it sought practical input from law enforcement – as the authorities with executive responsibility in the relevant field – as to the workability of those proposals.
While the police are not a department of government, they are nevertheless an arm of the state, and in that sense, the process was essentially intra-governmental. That some of the responses strayed a little wider than simple workability (commenting on human rights implications, for example), was not inconsistent with the aim of seeking practical feedback on the operationalisation of the proposals.
Scenarios where there is no general duty to re-consult and consideration of consultation responses
In R (Possible (the 10:10 Foundation) and Ors) v Secretary of State for Transport, the High Court considered two judicial review claims in relation to the defendant's decision in 2022 to publish its strategy to decarbonise the aviation sector by 2050 – the Jet Zero Strategy (JZS) – and its decision following a review in 2023 (the 2023 Review) that the JZS remained appropriate.
The claimants challenged the decisions on a number of grounds, including that:
- the defendant had a closed mind as it did not invite submissions on Direct Demand Management options to limit demand for air travel (DDM),
- the defendant failed to adequately consider responses to the consultation on the JZS as part of the 2023 Review, and
- the 2023 Review triggered a duty to re-consult because officials had identified new DDM and there had been significant public and expert concern about the strategy's reliance on nascent technologies.
The High Court reaffirmed that consultation is not negotiation, and that public authorities have a broad discretion to formulate a preferred strategy and choose the matters on which to consult.
The Court noted that the previous authorities on when discarded options must be consulted on, or mentioned in a consultation, is highly fact-sensitive.
Although previous cases pull in different directions, the leading authority is the Supreme Court decision in R (Moseley) v Haringey LBC. In this case, in choosing to consult on a strategy to achieve a specified objective, fairness did not require that the defendant also consult upon DDM which was a different strategy to achieve a different objective. Nor was the provision of information about DDM necessary in order for the consultees to express meaningful views on the JZS.
The defendant was entitled to choose which matters to consult on without being obliged to include discarded alternatives – particularly where, as was the case with the DDM, those alternatives had already been considered and rejected with reasons.
In relation to the 2023 Review, the Court reiterated that there is no general requirement to re-consult on changes to policies that have previously been consulted on. Nor is there a general duty to consult on policies which have the same subject matter as policies that have previously been the subject of consultation, or where proposed changes to a policy have arisen out of the consultation.
Re-consultation is required only if there is a fundamental difference between the proposals consulted on and those which the public authority subsequently wishes to adopt. The 2023 Review did not represent a fundamental change as it was a reaffirmation of the existing strategy, with ministers deciding not to pursue DDM measures further.
Nor was there a consistent practice of consulting that would give rise to a legitimate expectation of further consultation in public law.
Finally, the consultation responses from 2021 and 2022 were considered during the 2023 Review and were capable of influencing the decision, although it was acknowledged that the starting point of any review is the decision that has already been made, which inevitably influences the decision-making process.
Intensity of review when scrutinising reasons for not following policy or guidance
In R (Duke of Sussex) v Secretary of State for the Home Department, Prince Harry challenged the Home Office's decision (made by the Executive Committee for the Protection of Royalty and Public Figures (RAVEC)) to withdraw his publicly-funded police protection when in the UK.
He alleged that RAVEC acted unlawfully when it decided not to commission a Risk Management Board (RMB) analysis in line with its usual Terms of Reference before withdrawing his automatic police protection in 2020.
The Court of Appeal reaffirmed the principle established in earlier cases such as R (Nadarajah) v Secretary of State for the Home Department and Mandalia v Secretary of State for the Home Department that, where a public body has adopted a policy, it must normally be followed unless there is a good reason not to.
The Home Office argued that the Court should only intervene if the decision not to follow the policy was irrational in the Wednesbury sense. The Court of Appeal rejected this approach as too narrow. It confirmed that the correct test is whether the authority had a good reason for departing from the policy.
In applying that test, the Court considered two factors.
The first factor was the nature of the policy. Policies exist on a spectrum ranging from formal statutory codes made after consultation, which courts will enforce strictly, to informal internal guidelines, which may not bind as strongly.
RAVEC's Terms of Reference fell somewhere in the middle – they were formal rules but unpublished and concerned with highly specialised matters which gave rise to issues of democratic accountability.
The second factor was the degree of deference that the Court should accord to the decision-maker's view on whether there was a good reason for the departure. Such deference also existed on a spectrum: from greater deference when dealing with departure from policies on highly sensitive issues, to less deference in relation to less sensitive cases.
The Court noted that the subject matter here involved national security and the protection of the Royal Family, an area where courts traditionally accord significant weight to the views of specialist decision-makers.
The requirement for a 'good reason' is flexible and courts must scrutinise reasons with an intensity proportionate to the importance and sensitivity of the subject matter. As Lord Bingham explained in R (Munjaz) v Mersey Care NHS Trust, where guidance is departed from, reasons must be cogent, clearly expressed, and convincing.
In this case, the Court found that RAVEC had a good reason to depart from its usual process. The decision to create a bespoke case-by-case process for Prince Harry's visits to the UK, rather than commission a standard risk analysis, was justified by his unique circumstances of stepping back from royal duties and living abroad.
Senior officials with unparalleled expertise in royal protection gave evidence that a formal risk analysis would not have added useful value and that the bespoke approach allowed security decisions to be tailored to actual visits. The Court held that it was not its role to second-guess those judgments in such a sensitive area.
Prince Harry's appeal was therefore dismissed.
An important indirect consequence for the public will not, by itself, turn an otherwise private act into a public function for the purposes of the Human Rights Act 1998
In R (Tortoise Media Ltd) v Conservative and Unionist Party, the claimant sought judicial review of the Conservative Party's refusal to disclose information about its 2022 leadership election, which returned Liz Truss. In line with constitutional convention, as leader of the largest party in the House of Commons, Mrs Truss was invited by the Queen to become Prime Minister.
The claimant argued that it was entitled to the information sought as Article 10 of the European Convention on Human Rights (ECHR) imposes a positive obligation on a body to provide information to the media.
The High Court twice refused permission for judicial review, concluding that in electing a leader the Conservative Party was not exercising a public function. It was not therefore a public authority that had to comply with the ECHR under section 6 of the Human Rights Act 1998 (HRA).
The Court of Appeal granted permission for judicial review and retained the case to itself for a substantive hearing.
The claimant conceded that in many cases the election of its leader was not a public function. However, it argued that it was in this case because it directly led to the appointment of the Prime Minister, a public office. The Court of Appeal rejected this argument, distinguishing between the internal party election and the separate constitutional process of appointing a Prime Minister.
The Court emphasised that the Conservative Party is a voluntary association, which does not exercise statutory powers or public law powers. Its internal processes, including leadership elections, are not an exercise in governmental or public functions.
The party's internal leadership election is a private act governed by the party's constitution. The Court held that it did not become a public function simply because of the circumstances it led to in accordance with constitutional convention.
The claimant relied heavily on the precedent set in R v Panel on Take-overs and Mergers, ex parte Datafin, where a self-regulatory body was deemed open to judicial review due to its public law consequences.
The Court highlighted that the wording in Datafin was that 'public law consequences' may be sufficient to bring a body within the reach of judicial review, and not that public consequences will bring a body within the reach of judicial review.
The Court further distinguished Datafin, noting that the Takeover Panel in that case was performing a regulatory function and had to act 'judicially', and its decisions could have an indirect effect on others. The Court noted the background in that case was that the Government had deliberately decided not to establish a statutory regulator and there was no private law action available. The Court noted that the Takeover Panel was not a purely consensual organisation.
Ultimately, the Court concluded that the Conservative Party was not exercising a public function when it conducted its leadership election. Therefore, it was not a public authority under section 6 of the HRA, and the claim for judicial review was dismissed.
Further clarification on the 'no substantial difference' test
In R (Bradbury) v Brecon Beacons National Park Authority, the Court of Appeal considered the approach to be taken when applying section 31(2A) of the Senior Courts Act 1981, commonly known as the 'no substantial difference' test. Section 31(2A) requires a court to refuse relief in a successful judicial review where it appears highly likely that the outcome for the claimant would not have been substantially different even if the unlawfulness found had not occurred.
The Court emphasised that section 31(2A) is designed to prevent judicial review being used to quash decisions where the alleged unlawfulness made no real difference to the outcome.
The statute embodies a principle of practicality: courts should not grant remedies for technical or procedural defects if it is clear that the decision would have been the same regardless. However, this must be applied carefully so as not to undermine the fundamental principle of the rule of law, which requires public bodies to act lawfully and follow proper process.
The Court warned against simply using the 14 principles extracted from previous case law by the High Court in R (Cava Bien Limited) v Milton Keynes Councilas a form of checklist. The Court of Appeal noted that the principles as outlined in the case had been stripped of their factual and legal context and it will be more useful to refer to the cases from which the principles have been derived where relevant.
The Court also warned that some of the principles in Cava Bien did not reflect the authorities that they drew on. For example, it was not helpful to suggest that the section 31(2A) expressed a standard somewhere between the civil and criminal standard, or that a court should try to predict what a public authority might decide if the legal error had not been made.
The Court clarified that the threshold set by Parliament – 'highly likely' – is a demanding one. It does not mean a mere probability, nor that the decision might well have been the same.
Instead, a court must be satisfied to a high degree of confidence that the outcome would not have been substantially different. If there remains a real possibility that the claimant could have secured a different result had the unlawfulness not occurred, relief should not be refused.
For example, if a planning authority fails to consider a material factor, a court cannot dismiss the challenge simply because the authority could have reached the same conclusion. The court must instead ask whether, realistically, the omission left any scope for a different outcome.
In this case, the challenge was to the grant of planning permissions for two developments, and it was held that the respondent did not have appropriate assessments before it when it made the decision on those grants. However, planning permission was granted subject to conditions identical to those that were said to be needed in the assessments. As such, the outcome (the grant subject to those conditions) would not have been any different had the respondent had the assessments when it made the decision.
A consideration of procedural unfairness and inadequate reasoning
In R (TJ Trading Express Ltd) v Secretary of State for the Home Department, the High Court considered the defendant's decision to revoke a sponsor licence which allowed the claimant company to employ skilled migrants.
The decision was made because the claimant's director assigned a certificate of sponsorship to his brother-in-law in respect of a vacancy at the claimant's petrol station, which the Secretary of State suspected was not genuine.
The claimant challenged the decision on the grounds that it was procedurally unfair and inadequately reasoned.
The claimant argued that the defendant acted unfairly by not giving it the opportunity to make representations in advance of the decision, both in relation to the conduct that gave rise to the defendant's concerns, and on mitigation to inform the appropriate sanction should that conduct be proven.
The Court noted that what fairness requires in any case depends on the nature of the power being exercised, the importance of the interests affected, and the practicalities of the decision-making process. Here, revocation of a sponsor licence was recognised as a decision with very serious consequences for the business and its employees.
Whether there has been procedural fairness is a question for the court and cannot be determined by the fact that the Home Office guidance allowed it to revoke the licence without warning.
The Court noted the general principal set out by the Supreme Court in Bank Mellat v HM Treasury (No 2) that before a power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, subject to any contrary statutory provision or whether the circumstances would render such an opportunity impossible, impractical or pointless.
The Court accepted that the claimant had not been provided with an opportunity to make representations before the decision was made, and therefore held that the defendant had failed to act in line with the requirements of procedural fairness.
The Court also found that the decision was inadequately reasoned. It provided no evidence that the decision-maker had asked the correct question, namely whether there was any evidence that the claimant had acted deliberately or dishonestly, as was required in the Home Office guidance. Nor was there any explanation as to why it was considered that the vacancy was a sham.
However, the Court held that it was not necessary for it to determine whether the decision was irrational on the basis of inadequate reasoning. This was because the failure to request representations from the claimant meant that the decision was made on the basis of incomplete information and was therefore flawed in that regard.
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