In this final look at cases from 2024, we offer a straight forward and concise overview of six public law and regulation cases from the fourth quarter of 2024 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 contains some interesting cases on alternative remedies to judicial review, guidance and fairness relating to decision making, departing from expert advice, and the Government's discretion in decision making:

The Supreme Court restates the law on adequate alternative remedies to judicial review

In Re McAleenon's Application for Judicial Review, the appellant lived near a landfill which she alleged was emitting odours which were causing health issues.

The site was regulated by the local authority, the Northern Ireland Environment Agency and the Northern Ireland Department of Agriculture, Environment and Rural Affairs. The appellant brought a judicial review against those bodies arguing that they had not taken appropriate action to prevent harmful substances escaping from the site.

The respondents argued that the appellant had adequate alternative remedies to judicial review: a statutory right to bring a private prosecution against the site owner; an action in tort for nuisance; and an ombudsman scheme.

The High Court rejected the respondents' alternative remedy argument, but also went on to dismiss the substance of the appellant's claim, holding that the respondents had taken reasonable steps to investigate the emissions and had reached rational conclusions.

Both sides appealed and the respondents' alternative remedy argument was accepted by the Court of Appeal (CA). There were conflicts in the expert evidence and the CA considered it 'impossible' for any court to reach a conclusion without that evidence being tested through cross-examination.

Further, the CA considered that the other proceedings were a 'much better means' to achieve the appellant's 'desired goal' of preventing substances escaping the site, particularly because these would involve weighing up the evidence to come to a 'considered conclusion'.

On further appeal, the Supreme Court restated that judicial review examines whether public authorities have acted lawfully, so generally, the focus is on whether there were proper grounds for a public authority's conduct based on the information available to it.

Disputes of fact do not generally arise in determining this legal question, unlike in other proceedings.

The CA had incorrectly held that it needed to determine whether the site had emitted the alleged odours. However, the question for the CA was whether this decision was justified in light of the information available to the respondents, applying the tests of rationality and proportionality.

This did not require oral evidence or cross-examination, particularly where there was no alleged breach of the respondents' duty of candour to explain its decision-making process to the CA.

The alternative remedy question fell to be addressed by reference to the type of claim actually brought.

The appellant's overall objective was indeed to prevent the odours and there were different options available to her in pursing that aim. She chose to bring a claim to require the respondents to comply with their public law duties and judicial review was therefore the appropriate mechanism.

The other proceedings were not alternative remedies to a claim alleging public law breaches, because they would neither address nor remedy those issues. An ombudsman's role is to supplement the courts, not to replace them and the availability of such a complaint will not affect the right to bring a judicial review.

The case was therefore remitted to the CA to consider the merits of the appeal against the High Court's finding on the substance of the appellant's claim.

Further guidance on expert decision-making at the intersection between public and private law

R (Elliott Associates LP) v The London Metal Exchange was an unsuccessful appeal of a decision by the Divisional Court that LME acted lawfully in cancelling trades in response to a dramatic rise in nickel prices (the Cancellation). We covered this in a previous update.

Firstly, the Court of Appeal (CA) acknowledged that the 'contractual context', namely that the appellant (Elliott) had agreed to the LME Rules (including the power to cancel trades in exceptional circumstances), did not justify a 'dilution' of applicable public law principles.

Secondly, Elliott argued that the Cancellation was ultra vires. The CA disagreed, noting that there were no apparent limits on the circumstances in which the power to cancel could be exercised. It was also unnecessary for LME to have a published policy covering exercise of the power as it would be difficult to define 'exceptional circumstances' in advance.

Thirdly, Elliott argued that fairness required it to have had the opportunity to make representations prior to the Cancellation. The CA accepted that it was for the court to determine whether a fair procedure was followed, disagreeing with the Divisional Court's view that it was for LME.

Nevertheless, a decision needed to be made urgently, amid 'potentially catastrophic' circumstances. Holding a meeting with affected persons would have been impractical and in any event, there had been an opportunity to raise concerns ahead of the Cancellation. Regardless, Elliott had not identified anything it would have said in representations which could have made any difference.

Fourthly, the CA disagreed that it was irrational to cancel trades as opposed to allowing them to stand with recalculated margin requirements. To choose that option would have left LME unable to cover potential defaults.

On the day of the Cancellation, LME saw an extreme price increase without any rational explanation. It was entitled to conclude that the market was disorderly, with urgent action needed. There was not time to fully investigate the matter, and these efforts would not have affected the decision anyway.

Finally, Elliott argued that LME had breached its rights under Article 1 of Protocol 1 to the European Convention on Human Rights (A1P1). The CA agreed that a successful A1P1 claim would be an exception to the general exclusion of LME's liability in damages for anything done in the discharge of its regulatory functions.

Elliott's 'agreed trades' were not yet contracts of sale under which Elliott had a right to receive the agreed price, but they were legally binding contracts enforceable by arbitration. All parties were committed to the trades, there was nothing outstanding to agree, and no party could withdraw.

Therefore, Elliott's rights had 'clear economic value' and but for the Cancellation, Elliott would have obtained the contracts of sale. There was a legitimate expectation of obtaining the contracts.

While Elliott had 'possessions' for A1P1 purposes, there had been no unlawful interference with its rights as these were always subject to the lawful exercise of LME's power to cancel trades. Given the extraordinary market conditions, there was a real risk of cancellation and any legitimate expectation would therefore have to be heavily qualified.

No need for a 'good reason' to depart from expert advice

Under section 12(2) of the Prison Act 1952, the Secretary of State (SoS) has power to transfer prisoners to open prison conditions. In exercising such a power, the SoS may obtain advice from the Parole Board (the Board), whose duty it is to advise the SoS on matters relating to the early release or recall of prisoners.

In The Secretary of State for Justice v Sneddon, the Court of Appeal (CA) considered the approach that the SoS should adopt to advice from the Board that Mr Sneddon be transferred to open conditions and in particular, when the SoS may depart from such advice.

At first instance, Fordham J had held that the SoS did not have a reasonable basis to reject the Board's recommendation.

He did not accept that the SoS was permitted to disagree with the Board's 'evaluation of risk, provided that legally adequate reasons are given' or that the SoS could 'ascribe different weight to material factors in the risk/benefit balancing exercise'.

Rather, he considered that the SoS must have a 'good' or 'very good' reason to reasonably justify departure, in line with certain principles. For example, where the Board has a significant advantage over the SoS, the SoS ought to have a 'very good' reason to depart.

However, the CA rejected this approach. It clarified that the SoS is the sole decision-maker. Parliament could have shared the decision-making power between the SoS and the Board but chose not to.

In fact, the CA observed that the SoS has a 'two tier discretion'. That is, 'a discretion whether to seek the Board's advice in the first place'and'if advice is sought, a discretion whether to accept it'.

The CA pointed to the use of the word 'advice', indicating that the SoS is entitled to reject even a reasonable recommendation on his own (reasonable though different) assessment. The question was whether the overall decision was reasonable, not whether the SoS had a 'good' or 'very good reason' to depart from any advice given.

The usual two-fold irrationality test applied: (i) whether the decision was outside the range of reasonable decisions open to the decision-maker and (ii) whether there was a demonstrable flaw in the reasoning leading to the decision.

The CA clarified that this assessment will involve scrutiny of the SoS' approach to the Board's advice (i.e. whether it was given due consideration and weight).

It also acknowledged that 'the greater advantage enjoyed by the Board over the SoS on any particular issue, the less likely a decision of the SoS to depart from that finding or assessment will be rational'. But, ultimately, it depends on the facts of the case and the CA noted that the SoS has his own expertise, such as in relation to the prison estate.

Here, the CA allowed the SoS' appeal, observing that the SoS carefully considered and engaged with the Board's advice. Risk evaluation was within the SoS' expertise, so he was entitled to evaluate risk and ascribe different weight to material factors in the risk/benefit balancing exercise.

Adjudicator decision on contractual dispute amenable to judicial review

In R (Shashikanth) v NHS Litigation Authority, the Court of Appeal (CA) considered whether a decision of an adjudicator appointed by the Secretary of State to determine a contractual dispute was amenable to judicial review.

The appellant, a GP, had entered into two contracts with the NHS Hillingdon Clinical Commissioning Group (CCG) for the delivery of primary medical services.

The contracts were terminated by the CCG on the basis that the appellant was in breach of an obligation to co-operate with a primary care network. However, the appellant disputed this and (via a contractual provision) referred the matter to the SoS, who appointed the NHS Litigation Authority to act as the adjudicator under the statutory dispute resolution scheme to determine the dispute.

The adjudicator determined that the CCG was entitled to terminate the contracts.

On a challenge to that determination, the High Court held that it was not amenable to judicial review as it was a private law relationship regulated by contract (see our article regarding public body contracts and amenability to judicial review).

On appeal, the CA held that the judge was wrong to hold that the adjudicator's decision was not amenable to judicial review.

The CA observed that the source of the SoS' power to determine the dispute (or appoint an adjudicator to do so) was statutory. No power is conferred on the SoS by virtue of the contract between the appellant and CCG and, while the appellant has a contractual choice whether to refer the matter to the SoS, once referred, jurisdiction is regulated by statutory provisions.

The presumption therefore was that the function of determining the dispute is a public function amenable to judicial review, unless anything in the nature of the decision rebuts that presumption.

In respect of this, the CA considered that –

  • The fact that the issues being determined involve private law rights does not, of itself, indicate that the function is not a public one.
  • There is one statutory dispute resolution process which applies to parties to both NHS contracts (the result of which is indisputably amenable to judicial review) and non-NHS contracts which provide a choice of either the statutory process or through a civil claim. The same function is being performed by the SoS or adjudicator in each case.
  • The overall context in which the private law rights arise is statutory as the NHS Act 2006 provides the power to enter into general medical services contracts with certain provisions in those contracts prescribed by regulation.

Accordingly, the CA held that the adjudicator's decision was amenable to judicial review and proceeded to conclude that it had erred in law in determining that the CCG was entitled to terminate the contracts. There was no contractual obligation on the appellant to co-operate with a primary care network, and there had been no variation of the contracts imposing such an obligation.

The appeal succeeded as the CCG was not entitled to assert that there was a contractual obligation or terminate a contract because of a breach of a contractual obligation, when no such obligation existed.

High Court judgment reinforces fairness standards in public sector decision processes

R (QA) v Secretary of State for Foreign, Commonwealth and Development Affairs is a High Court case which considered a number of public law principles, particularly procedural fairness, apparent bias, and predetermination in administrative decision-making.

QA, an Afghan citizen had worked with the UK Government in Afghanistan. In 2015 (when the UK started to prepare to leave Afghanistan), because his role in Afghanistan placed them in danger, he and his immediately family was resettled in the UK under the Locally Employed Staff Ex-Gratia Scheme. In 2021, the UK set up the Afghan Relocations and Assistance Policy (ARAP) – also a resettlement scheme for Aghan citizens in danger. This policy extends to the resettlement of additional family members but only where there are compelling circumstances.

QA applied under ARAP for the resettlement of 15 members of his extended family, arguing that their safety was similarly at risk due to his prior association with the UK Government. His application was refused four times (each time by a panel established for making the decision) prior to the (fifth) decision being challenged by way of judicial review.

The judicial review was brought on two grounds, namely that the decision (i) failed to take relevant matters into account, and (ii)was unfair due to apparent bias and/or predetermination.

The second ground (considered first by the Court was concerned with the position of a panel member (Ms Ferguson) who involved in making this (fifth) decision and also the third decision. Ms Ferguson gave witness statements, in relation to a judicial review (subsequently withdrawn) of the third decision and also in relation to this case, in which she expressed firm views on the application (without acknowledging her role as a panel member in the third decision), strongly defended the third decision and stated that she would not expect a fresh decision to reach a different outcome.

The claimant argued that Ms Ferguson’s involvement in the final decision undermined procedural fairness and demonstrated predetermination. They emphasised that her prior statements indicated a firm stance against reconsidering the merits of the application when making the fifth decision. The Secretary of State maintained that Ms. Ferguson’s participation did not affect the integrity of the decision, as she was not the sole decision-maker and decisions were collectively made by the panel.

The Court focused on procedural fairness, applying the test for apparent bias established in Porter v Magill [2001] UKHL 67. It considered whether a fair-minded observer would conclude there was a real possibility of bias or predetermination in the panel’s decisions.

The Court rejected the Secretary of State’s defence and found that Ms Ferguson’s prior conduct of strongly defending the third decision, failing to identify that she was a member of the panel that made that decision, and subsequently being a member of the panel that made the (fifth) decision, would lead to a fair-minded observer considering that there was a possibility that the decision was predetermined.

In light of its decision on this ground, the Court did not consider it appropriate to rule on the second ground and quashed the (fifth) decision.

High Court upholds Government's broad discretion in national security reviews

R (L1T FM Holdings UK Limited) v Chancellor of the Duchy of Lancaster in the Cabinet Office concerns a judicial review of a final order made by the Secretary of State for Business, Energy and Industrial Strategy under section 26(3) of the National Security and Investment Act 2021 (NSIA – which came into force on 4 January 2022).

The first claimant acquired, on 21 January 2021, 100% of the shares in a UK fibre broadband company. The ultimate beneficial owners of the first claimant, and consequently the acquired company, included a number of Russian nationals who, following Russia's invasion of Ukraine, had sanctions imposed on them by the UK government in March 2022. Section 1 of the NSIA empowers the Secretary of State to issue a 'call- in notice' where a trigger event has taken place which gives or may give rise to a risk to national security. A call-in notice was issued in respect of the acquisition and following various assessments of risk, remedies, and representations, Secretary of State concluded that full divestment was the only proportionate response to address the security risks – making the order requiring the first claimant to divest its full shareholding in the broadband company.

The claimants did not contest the making of the final order per se but argued that their rights under Article 1 of Protocol 1 (A1P1) of the ECHR had been breached as less intrusive measures, such as information flow restrictions or independent audits, could have mitigated the risks without requiring the sale of their shares. Additionally, they sought compensation for the forced sale of their shares. They also questioned the procedural fairness of the process leading to the decision.

The Court held that the divestment order was lawful and proportionate under A1P1 in that while the outcome deprived the claimant of its property, it pursued a legitimate aim, namely safeguarding national security. The claimants contended that the forced sale of their shares, without compensation, constituted a disproportionate interference with their property rights. However, the Court held that the national security concerns outweighed the financial interests of the claimants and that full compensation was not required in this case.

Drawing on James v United Kingdom [1986] 8 EHRR 123, and Vistins v Latvia [2014] 58 EHRR 4, the Court concluded that the interference balanced the public interest in national security against the claimant’s financial interests. The multi-factorial nature of the risk assessment necessitated judicial deference to the Secretary of State’s decision, given the Government’s institutional expertise in relation to national security issues, including predicting future risks.

In addition, the claimants argued that the process was procedurally unfair, as they were not given sufficient information to make meaningful representations. The Court highlighted that fairness did not require extended dialogue or bespoke consultations and concluded that the assessments conducted, including those summarising the claimants' representations, satisfied both statutory and common law fairness requirements.

The judicial review was dismissed, and the judgment highlights the judiciary’s deference to executive assessments in security-sensitive matters, provided decisions adhere to principles of fairness and proportionality.

For more information and guidance, or to discuss any of these cases, contact our Public Law & Regulation team