Public Law Case Update Q3 2025

In this autumn edition of our quarterly case update, we offer a straightforward and concise overview of six public law and regulation cases from the third 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, procedural failures, the balance between transparency and national security, and the scope of judicial review in relation to contracts:

• The Supreme Court on the principles of statutory interpretation - Wathen-Fayed v Secretary of State for Housing, Communities and Government.

• Supreme Court provides guidance on proportionality analysis in human rights challenges - Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs; Dalston Projects Ltd & Ors v Secretary of State for Transport.

• Divisional Court confirms that procedural failures do not always invalidate the decision - R (FTDI Holding Limited) v Chancellor of the Duchy of Lancaster.

• Two judgments by the Court of Appeal in the Palestine Action case - R (Ammori) v Secretary of State for the Home Department

• High Court highlights limited scope for judicial review of commercial contracts - R (Rydon Group Holdings Ltd) v Secretary of State for Levelling Up, Housing and Communities.

• Court of Appeal confirms no unlawfulness where there is no prejudice in fairness cases - R (Moakes) v Canterbury City Council.

The Supreme Court on the principles of statutory interpretation

In Wathen-Fayed v Secretary of State for Housing, Communities and Government, the Supreme Court considered the meaning of 'crematorium' and the measurement of statutory distance restrictions in the Cremation Act 1902 (the Act).

The appellant challenged the planning inspector's decision to approve a planning application for the development of a crematorium arguing that the development contravened the radius clause in the Act. The radius clause prohibits constructing a crematorium within 200 yards of a dwelling house or 50 yards of a public highway.

The challenge centred on whether the term 'crematorium' in the Act's radius clause refers solely to the building where human remains are burned, or whether it also encompasses ancillary areas such as the memorial garden where ashes are stored.

The appellant argued for a broad interpretation of the term with any area used for activities incidental or ancillary to the burning of human remains included within the radius restrictions.

The respondent and interested parties (the crematorium and the District Council that granted the permission) maintained that only the crematory building itself should be considered. The High Court and Court of Appeal agreed.

The Supreme Court noted that words used in a statute should be interpreted in the light of their context and the purpose of the relevant provision.

It also took the opportunity to restate several principles of statutory interpretation –

1. Where a word is used more than once in the same statute, it will be taken to have the same meaning throughout.
2. A statute should not be interpreted to produce an absurd result, with absurdity given a wide meaning to include impossibility, impracticability and futility.
3. Subordinate legislation may be persuasive authority as to the meaning of the primary statute.
4. Statutory guidance may have persuasive authority but has no particular legal status.
5. In some cases, settled practice may be relied on as an aid to interpretation.

Applying some of those principles, the Court dismissed the appeal holding that, for the purposes of the radius clause, "crematorium"means"a building fitted with appliances for the purpose of burning human remains." -

• The ordinary, broad meaning of "crematorium" would result in impractical and absurd results. Features like the access road would fall within the definition, effectively preventing any site from being connected to a public highway, since the access road itself would have to remain at least 50 yards from the highway, making access impossible.
• The primary purpose of the radius clause is the protection of public health from emissions arising from the burning of human remains. The storage or disposal of ashes does not pose similar risks.
• Subsequent legislation adopted the radius distance to be taken from the building used for burning human remains.
• In regulation 16 of the Cremation Regulations 1903, the land reserved for the burial of ashes was considered to be "adjoining" the crematorium (not being part of it).
• Measuring the radius distance from the crematory building, which is a fixed, permanent structure, provides clarity and certainty rather than doing so from areas of land that are defined by their use.

Supreme Court provides guidance on proportionality analysis in human rights challenges

In the conjoined appeals in Shvidler v Secretary of State for Foreign, Commonwealth and Development Affairs; Dalston Projects Ltd & Ors v Secretary of State for Transport, the Supreme Court considered the compatibility of UK sanctions imposed under the Russia (Sanctions) (EU Exit) Regulations 2019 in response to Russia's invasion of Ukraine with fundamental human rights protections.

Both appellants contended that sanctions imposed on them interfered with their rights under Article 8 (private and family life) and Article 1 of Protocol 1 (the right to peaceful enjoyment of property) to the European Convention on Human Rights (ECHR), and that the interference was disproportionate to the legitimate aims pursued.

The cases were the subject of two separate judgments from the High Court and were then heard together by the Court of Appeal. Both courts dismissed the claims.

The issues before Supreme Court included (i) what principles the High Court should apply when considering whether a measure is proportionate, and (ii) the approach of the appellate court when considering the decision at first instance.

On the first issue, the Supreme Court made the following points –

1. Compatibility with the ECHR is a question of substance for the court itself to decide. It must consider whether there has actually been a violation of ECHR rights, not whether the decision-maker has properly approached that question.
2. The public authority decides on the action it will take and hence remains the primary decision-maker; but the court makes its own assessment whether such action is proportionate, and hence lawful, or not.
3. Although the court will have regard to and may afford a measure of respect to the balance of rights and interests struck by the public authority, it is not bound by that decision subject only to review according to the rationality standard. Even where a decision is not irrational, it remains open to the court to conclude that it is disproportionate.

On the second issue, the Supreme Court stated that whether it is appropriate for the appellate court to make its own fresh assessment of proportionality, or simply review whether the lower court directed itself correctly and reached a reasonable conclusion, depends on a number of factors.

A fresh assessment is more likely to be justified where;

• the decision will provide guidance for other cases;
• the subject matter has major social or political significance;
• matters of general principle are in issue; or
• the question concerns the compatibility and proportionality of general rules set out in legislation or is being considered for the first time.

By contrast, a review approach is more appropriate where the decision is a one-off which only affects persons involved in the proceedings, there is no controversy about the content and compatibility of the general law which is applicable, and the case turns essentially on a factual assessment of the circumstances which the lower court was particularly well placed to make.

The approach adopted ought to be the same at each appellate stage.

Divisional Court confirms that procedural failures do not always invalidate the decision

In R (FTDI Holding Limited) v Chancellor of the Duchy of Lancaster (CDL), the Divisional Court dismissed the claimant's judicial review challenge of a Final Order issued under the National Security and Investment Act 2021 (NSIA).

FTDI, a UK-registered semiconductor company, was acquired in December 2021 by the claimant, a UK holding company ultimately controlled by Chinese state-backed funds.

The acquisition constituted a 'trigger event' under the NSIA, though the Act was not yet in force at the time.

Government concerns regarding the transaction arose in 2022, initially focused on a different potential acquirer, but by May 2023, officials became aware of the claimant's involvement.

In November 2023, the CDL issued a Call-In Notice (the Notice) and, following an investigation, proceeded to make a Final Order in November 2024. The Notice directed the claimant to divest its 80.2% shareholding in FTDI, citing national security concerns. Specifically, the government identified risks relating to potential disruption of the UK's critical national infrastructure and the possible transfer of sensitive semiconductor technology.

The claimant brought a judicial review challenge on a number of grounds, including that no or no sufficient reasons were given for the making of the Final Order.

The claimant argued that the Final Order breached section 28(4)(d) of the NSIA by failing to state the reasons for making it – specifically why divestment was necessary or proportionate.

The defendant argued that sufficient information had been provided in accordance with national security constraints, and that section 28(5) of the NSIA permits the exclusion of sensitive material from copies of any order that is served.

The Court found that the Final Order failed to meet the statutory requirement to state its reasons, as the explanation provided was formulaic and uninformative. It dismissed the argument that national security redactions under section 28(5) justified the omission, given that the original order contained no additional reasoning beyond the served copy.

The Court then considered whether the non-compliance with a procedural requirement set out in the statute invalidated the Final Order.

Upon reviewing section 28 in its entirety, the Court considered it clear that Parliament did not intend that any and all non-compliance should invalidate an order. Had that been Parliament's intention it would have been expressly provided for in the NSIA. The defendant had sufficient grounds to make the Final Order and relied on them when making the decision. As such, the failure to provide adequate reasons in the Final Order did not invalidate it.

Two judgments by the Court of Appeal in the Palestine Action case

In R (Ammori) v Secretary of State for the Home Department, the Court of Appeal refused to grant interim relief preventing the proscription of the organisation Palestine Action under the Terrorism Act 2000.

Palestine Action targets UK companies and institutions that it alleges are complicit in violations of international law against Palestinians. Following an incident in which military aircraft were damaged at an RAF base, the Secretary of State (SoS) made an order proscribing Palestine Action.

A founder member of Palestine Action challenged that order and sought interim relief to prevent the order from taking effect pending determination of the claim.

The case has thus far given rise to two judgments by the Court of Appeal.

In the first appeal Ms Ammori challenged the High Court's refusal of interim relief. In upholding the judge's decision, the Court of Appeal reaffirmed the established principles for granting interim relief in public law cases –

• the need to identify a serious issue to be tried,
• the adequacy of damages if an interim injunction were refused, and
• the balance of convenience, with particular weight given to the public interest and national security considerations.

The judge had correctly identified a serious issue to be tried, particularly regarding the proportionality of the interference with freedom of speech and association.

The judge was entitled to the view that harm flowing from an individual's choice to support a proscribed group carried limited weight. Furthermore, there was no failure to consider the relevant rights, as only supporting a proscribed organisation was prohibited.

Even a short suspension of the order would deny the public of important protections. The judge was entitled to give significant weight to the public interest in national security and the executive's assessment of risk, especially where Parliament had approved the order.

At first instance, in granting permission for judicial review, the judge had also dismissed the SoS's argument that a statutory appeal against a refusal to deproscribe an organisation was an adequate alternative remedy in this case.

In the second appeal, brought by the SoS, the Court of Appeal again upheld the judge's decision. The statute specifically distinguished between a decision to add an organisation to the proscribed list and a later decision to remove it. These were two distinct situations, and the statutory appeal process was provided to address only the latter.

Where an organisation was deproscribed, that did not remove the criminal consequences of actions before that decision. Even if the order to proscribe was unlawful, any conviction between proscription and deproscription would still stand.

Even if the Court of Appeal was wrong on that, it considered that the appeal right was not adequate in the circumstances, as judicial review provided a swifter route to resolution where there were people facing convictions if the order stood.

In addition, it was undesirable that those people might seek to raise the unlawfulness of the order as a defence in criminal proceedings in multiple different ways before various courts. That would create chaos which could be avoided by an early and authoritative decision about the lawfulness of the order.

High Court highlights limited scope for judicial review of commercial contracts

In R (Rydon Group Holdings Ltd) v Secretary of State for Levelling Up, Housing and Communities, the High Court considered again the scope for judicial review in the context of commercial contracts.

Following the Grenfell Tower fire, the Building Safety Fund (BSF) was established under the Building Safety Act 2022 (BSA) to fund and oversee the remediation of fire safety defects in high-rise residential buildings.

Developers were encouraged to sign up to Self-Remediation Terms (SRTs) under the Responsible Actors Scheme to remediate buildings they had developed or face significant restrictions on their ability to operate in the market. When Rydon joined the Scheme, it signed a contact with the SoS which contained the SRTs.

In 2024, the SoS made a number of decisions under the contract and SRTs regarding remediation of buildings that Rydon had developed.

Where decisions are made in a contractual context, the courts have previously held that judicial review is often available only on the narrow grounds of fraud, corruption or bad faith.

The claimant argued that the full range of judicial review grounds should be available in its challenge for three main reasons –

1. The contract and SRTs formed a key part of the regulatory mechanism for achieving the statutory purposes of the BSA and the Responsible Actors Scheme. The contract was not a commercial agreement, but rather a means of enforcing statutory objectives in the public interest.
2. Rydon was effectively compelled to enter into the contract as refusing to do so would have resulted in regulatory sanctions, including being publicly named on the prohibitions list, which would have seriously hindered its ability to operate. The SoS's refusal to reopen negotiations or agree to a side letter further demonstrated the absence of genuine freedom of contract.
3. The SoS was not operating within a typical commercial market, so the ordinary limits on judicial review of contractual decisions should not apply.

The Court disagreed, providing a number of reasons for concluding that the case fell within those in which judicial review is available only on limited grounds (none of which were established in this case) –

• The contractual context need not be purely commercial for a limited scope of judicial review to apply. Political and other considerations can also be taken into account by the public authority.
• Although the defendant's decisions were made in a regulatory context, they were ultimately exercised under the terms of the contract and SRTs and were therefore contractual.
• There must be a relevant and sufficient link between a contractual obligation and a public law power or duty to justify a wider remit for judicial review.
• The existence of statutory architecture, such as the BSA, does not automatically transform contractual obligations into public law duties.
• The commercial consequences of not signing were severe. However, it is not unusual for a company to have to contract with a specific entity in order to access a given market.
• That contractual remedies would not provide the remedies sought does not mean public law remedies should be available.

Court of Appeal confirms no unlawfulness where there is no prejudice in fairness cases

In R (Moakes) v Canterbury City Council, the Court of Appeal dismissed an appeal challenging Canterbury City Council's decision to grant planning permission for a significant development within the Kent Downs Area of Outstanding Natural Beauty.

The appellant challenged the decision on four grounds, all of which the High Court dismissed. The appellant appealed three of its unsuccessful grounds including one relating to procedural unfairness.

The Council's constitution allowed for a limited number of speakers for and against the proposal, including representatives of amenity groups. However, due to confusion by Council officials, representatives from two national organisations (CPRE Kent and Natural England) were misinformed about their right to speak in a representative capacity. The former was not provided an opportunity to speak, and the latter had a reduced timeslot.

The High Court found that although there had been a breach of the Council's constitution, no prejudice had been suffered by the appellant and therefore no procedural unfairness had been established.

On appeal, the appellant first argued that the breach of the constitution automatically rendered the decision unlawful. The Court of Appeal disagreed and highlighted the need for prejudice to be established.

Although the appellant abandoned the point, the Court took the opportunity to reiterate the comments in R (Bradbury) v Brecon Beacons National Park Authorityas to the correct interaction between procedural breaches, prejudice and the 'no substantial difference' test in section 31(2A) of the Senior Courts Act 1981.

Bradbury stated that the court must first consider whether procedural non-compliance renders a decision unlawful. To be unlawful, prejudice must be established. Only then should the court consider whether, but for that unlawfulness, the decision would likely have been the same under section 31(2A).

The court should not move directly from deciding that there has been a breach of procedural requirements to section 31(2A) without considering whether there has been any prejudice in order to establish unlawfulness.

Section 31(2A) does not displace that step as the provision is not engaged unless a public law error has been established.

In Moakes, the appellant also argued that the judge adopted too narrow a view of the prejudice they suffered by the procedural failing.

The Court of Appeal noted that procedural fairness does not require the planning authority to allow members of the public to make oral representations in every planning application case.

If a public speaking scheme is adopted, the public body must ensure fairness. The Court found no evidence of an imbalanced process in this case arising from hearing more supporters than objectors.

The appellant was not prevented from speaking and chose not to register to speak, having assumed that CPRE Kent intended to do so. The objections of the appellant and CPRE Kent were fully set out in writing and substantially overlapped with those of Natural England.

There was no evidence that an additional three minutes from Natural England would have affected the appellant's position or the decision-making process.

Closing thoughts

These Q3 cases highlight key developments in public law, from statutory interpretation and procedural compliance to proportionality in human rights challenges. They reinforce the need for clarity, transparency, and careful balancing of rights with policy objectives; guidance that will shape decision-making for public authorities and practitioners alike.

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