The Court of Appeal dismissed two appeals concerning decisions made by Government ministers under the Russia (Sanctions) (EU Exit) Regulations 2019 (the “2019 Regulations”). In doing so, the court discussed at length the role of both a first-instance court and an appellate court when reviewing decisions based on proportionality under the Human Rights Act 1998 (“HRA”). Key Points The first-instance court’s role is to determine for itself whether an act is substantively compatible with a European Convention of Human Rights (“ECHR”) right. It is not limited to reviewing the public authority’s de ..read more

The European Court of Human Rights (“ECtHR“) has delivered three highly anticipated judgments on the application of the European Convention on Human Rights (“Convention“) in the climate change context. Whilst two of the cases were ruled inadmissible on procedural grounds, in the third case it has for the first time found a violation of Convention rights in the climate change context and outlined positive obligations on all States, including the UK, in relation to measures to mitigate climate change. This decision marks a significant development in the approach of the ECtHR and how the Conventi ..read more

Recent developments in AI regulation make it clear that the burden, and risk, of regulating this exciting but difficult new area in the UK will fall squarely on existing sectoral regulators for now, including those regulators who will not necessarily have significant technical expertise in this high-tech space. We look at some of those developments and consider the difficulties for regulators, and the implications for those subject to regulation who need to keep a close eye on their regulator(s) in this context over coming months. Regulators’ role in broader AI regulation In stark contrast to ..read more

In R (Rights Community Action Ltd) v Secretary of State for Levelling Up, Housing and Communities [2024] EWHC 359 (Admin), the High Court granted an application for judicial review by Rights Community Action Ltd (RCA), holding that planning inspectors (Inspectors) erred in law in relying on a Written Ministerial Statement (WMS) dated 2015 to remove net zero policy requirements. In doing so the court commented on various aspects of judicial review, including jurisdiction and the test for standing. Key points In establishing the jurisdiction of the court, it is the substantive nature of the mat ..read more

In R (on the application of Boswell) v Secretary of State for Transport [2024] EWCA Civ 145 the Court of Appeal considered the extent to which the cumulative carbon emissions of a nationally significant infrastructure project should be assessed. Key Points A wider assessment of cumulative carbon emissions for nationally significant infrastructure projects will not always be appropriate or required. The method used to assess the cumulative carbon emissions of any project is a matter for the decision-maker, challengeable only on rationality grounds. Carbon emissions have no geographic boundarie ..read more

In XY v Secretary of State for the Home Department [2024] EWHC 81 (Admin), the High Court held that the Government had been implementing an unlawful, secret policy of withholding certain decisions. In doing so, the Court commented on various well-established common law principles which are relevant to the use of secret policies by public bodies, and the duty of candour. Key points A public body must not operate an unpublished policy which is inconsistent with its published policy. A public body may depart from its published policy where there are good reasons. However, the public body must in ..read more

In Phillips v Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 32 (Admin) the High Court considered the boundaries of the right to free speech and the permissibility of interference with such fundamental rights. Key points The right to freedom of speech is a fundamental common law right. However, it is subject to varying degrees of protection based on the nature of the speech. There is a distinction to be made between legitimate political dissent, which warrants the highest level of protection, and illegitimate propaganda where lesser protection is afforded. A ..read more

In R (LJ Fairburn & Son Ltd and others) v the Secretary of State for Environment, Food and Rural Affairs [2024] EWHC 65 (Admin), a group of poultry farmers successfully challenged the Secretary of State’s policies on the payment of compensation for birds culled following outbreaks of Avian Influenza (commonly known as “bird flu“). The High Court held that, as a matter of statutory interpretation, the claimants were entitled to compensation for any birds that were healthy at the time they were condemned to slaughter, and ordered the defendant to reconsider the compensation payable to the cl ..read more

This post below was first published on our Competition notes blog: In its ruling1 of 17 January 2024 the Court of Appeal allowed the CMA’s appeal against a joint judgment by the Competition Appeal Tribunal (CAT) and the Administrative Court in the BMW and Volkswagen cases, relating to the scope of the CMA’s information gathering powers under Section 26 of the Competition Act 1998 (CA98).  The joint judgment held that the CMA’s decision to issue an information request to foreign-domiciled companies, with no presence in the UK, for documents and infor ..read more

The post below was first published on our Public Law notes blog: The High Court has refused environmental NGO ClientEarth’s application for permission for judicial review of the decision taken by the Financial Conduct Authority (FCA) to approve the prospectus of an oil and gas operator Ithaca Energy plc (Ithaca): R (on the application of ClientEarth) v Financial Conduct Authority [2023] EWHC 3301 (Admin). Under s.87A of the Financial Services and Markets Act 2000 (FSMA), the FCA may not approve a prospectus unless satisfied that it contains the information required by the Prospectus ..read more