Disputes Yearbook 2024:
Public law and procurement

Climate change and ESG judicial reviews

2024 has seen significant developments in climate change judicial review cases, with multiple landmark rulings that signal growing success for claimants challenging public body decisions related to climate change. A notable example is the Swiss case, where the European Court of Human Rights for the first time found a violation of European 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 marked a significant development in how human rights can be used in climate change litigation. In the first major consideration of the judgment by the domestic courts, the High Court distinguished between mitigation and adaptation measures, upholding the more orthodox approach of giving states broad discretion in relation to the latter. It also commented that the UK's legal framework, underpinned by the Climate Change Act, did not suffer the same regulatory gaps identified in Switzerland.

The trend continued with the Supreme Court's ruling in Finch which found that emissions from the downstream use of products from an oil development must be considered in Environmental Impact Assessments. This ruling was followed by the High Court quashing planning permission for the Whitehaven coal mine. There the court noted that any developments seeking to rely on carbon offsetting or substitution arguments must be supported by full assessments and proper engagement and reasoning by decision-makers, reflecting an increasing judicial willingness to scrutinise policies and projects that fail to adequately consider climate impacts.

Further support for the idea that the courts are increasingly interventionist in the ESG context comes from the Court of Appeal's decision in the World Uyghur Congress case, which highlights an increased willingness to interrogate decisions that traditionally fall within the broad discretion of investigative authorities. The court quashed the National Crime Agency's refusal to investigate cotton imports suspected to be linked to forced labour, stressing that the absence of specific criminal property does not preclude an investigation under the Proceeds of Crime Act. This decision may signal a shift toward greater judicial willingness to police issues of significant public concern.

Procedural developments in judicial review

On the issue of amenability, the court in the iDealing.com case found that decisions made by the Financial Ombudsman Service under its non-statutory service complaints scheme were not amenable to judicial review. Despite the FOS’s statutory functions, the court ruled that the decisions lacked a sufficient public law element. This highlights that not all actions by public bodies, even when seemingly linked to statutory duties, are subject to judicial review.

Regarding interim relief, the British Standards Institution case underscores the difficulty of obtaining such relief against public authorities, particularly when strong public interest factors, like health and safety, are involved. The Court of Appeal emphasised that courts should be cautious about granting interim injunctions that interfere with public bodies' decision-making, especially when the balance of convenience tilts towards public policy concerns.

Lord Banner KC’s independent review into judicial reviews of Development Consent Orders (DCOs) has proposed a range of reforms aimed at reducing delays to Nationally Significant Infrastructure Projects. Key recommendations include limiting the number of attempts claimants have to obtain permission for judicial review, more active case management in DCO judicial reviews, and introducing target timescales for the Court of Appeal and the Supreme Court in these cases. The Government has welcomed the review and is seeking broader input through a call for evidence to ensure reforms strike the right balance between speeding up litigation and preserving the right to challenge government decisions. While the review aims to improve efficiency, it also emphasises the need to protect access to justice and maintain a fair process for legitimate challenges.

Procurement Act 2023

The Procurement Act 2023 will now come into force on 24 February 2025, following a delay to allow the new Labour government time to update the National Procurement Policy Statement (NPPS) to reflect its priorities. The Act aims to reform public procurement by promoting value for money, social value, and greater opportunities for small and medium-sized enterprises. The Procurement Regulations 2024 provide further detail on how contracting authorities should apply these principles in practice. The Act will also require authorities to publish key procurement information on a new central digital platform, improving transparency for suppliers and the public. Overall, the Act represents a substantial re-writing and consolidation of the current, EU-inspired rules on public procurement. All contracting authorities and utilities in the UK will need to familiarise themselves with the new legislation. Access our webinar on the Act here.