Gatwick Airport Ltd v Secretary of State for Transport [2026] EWHC 1733

High Court of Justice, England and Wales

Facts

1 The claimant (“Gatwick”) is the operator of Gatwick Airport. It challenges the Secretary of State’s decision to make the Airports Slot Allocation (Alleviation of Usage Requirements) Regulations 2026. The 2026 Regulations (broadly) permit airlines to “hand back” up to 10% of their landing and take-off slots at Gatwick (and other major airports in England) in 2026-27 without prejudicing their future slot allocations.

Issue(s)

2 Gatwick’s grounds of challenge are that:

(1) The Secretary of State did not have power to make the 2026 Regulations. That is because she did not address her mind to whether they would increase the regulatory burden,^[1]Para 18 refers to section 1 of Legislative and Regulatory Reform Act 2006, which provides for a power to remove or reduce burdens. Subsection (1) provides “A Minister of the Crown may by order … Continue reading or, if she did, her conclusion that they did not do so was irrational.

(2) The Secretary of State conducted a flawed consultation.

(3) There was a breach of the public sector equality duty.

3 The Secretary of State resists the claim. She says the claim is out of time, that she rationally considered the 2026 Regulations would not increase the regulatory burden, that she conducted a fair consultation and that there is no breach of the public sector equality duty which has, anyway, been raised too late. […]

Discussion

Johnson J found that the Secretary of State’s decision did not increase the relevant regulatory burden. See paras [83] to [95]. His Honour found that the Secretary of State’s decision was not irrational, see further from para [98]:

98 The Secretary of State was well aware of the effect of the 2026 Regulations. She had approved the consultation and was aware of the consultation responses. It follows from the wording of the 2026 Regulations that they reduce the regulatory burden on airlines that operate at coordinated airports in England, including Gatwick. Instead of having to ensure that they use 80% of the slots in respect of which no justified non-use reason applies, an airline can prospectively return up to 10% of its slots, and then it only has to use 80% of the remaining slots in respect of which no justified non-use reason applies. The 2026 Regulations remove the financial costs, administrative inconvenience and obstacles to efficiency, productivity and profitability that would otherwise be occasioned by the work necessary to comply with the more onerous regulatory framework of the unamended Slots Regulation. Those all amount to burdens within the meaning of section 14 of the 2023 Act. They are properly to be regarded as a regulatory burden that is alleviated by the 2026 Regulations.

99 The evidence does not quantify the reduction of the regulatory burden on airlines, but it is sufficiently clear that it is significant. By contrast, it is also common ground that the 2026 Regulations impose a regulatory burden on ACL. It will have to administer the returned slots and arrange for any re-allocation of those slots. Again, the evidence does not quantify the cost of this burden, save that Mr Silk says it will amount to “some administrative costs… [which] would be expected to be minor in the context of the sector.” ACL did not raise any concern with the Secretary of State about increased administrative costs, and it has not taken part in these proceedings. There was no suggestion from any party that the regulatory burden on ACL would be particularly onerous.

100 The Secretary of State was aware that the airport operators unanimously opposed the introduction of the 2026 Regulations. She was not aware of the precise impact on the airport operators, but that which can properly be regarded as a regulatory burden is limited. That is because the airport’s role in administering the regulatory framework is “essentially passive”, limited to the provision of information, arranging meetings and assisting with enforcement action. For the reasons given above, the ultimate consequential net effect on a business’ profitability as a result of a regulatory regime is distinct from the direct financial cost of complying with the regime. The concerns that are expressed by Gatwick are not concerned with the financial cost of implementing the regulatory regime but instead with the net financial consequences of that regime. That was not a relevant factor for the Secretary of State to take into account.

101 It was for the Secretary of State to decide whether she had sufficient information to assess whether the regulatory burden was increased. It was for her to decide whether to accept the advice of her officials or whether to ask further questions. Given her background knowledge of the sector and her involvement in this particular issue over a period of weeks, and given the nature of the assessment that was to be made, and the narrow meaning of “regulatory burden”, it was reasonable for her to rely on the advice given to her by her officials. There was nothing inaccurate in the summary of the consultation responses or in the summary of the requirements of the 2023 Act. Gatwick has not identified any material factor that the Secretary of State was bound to take into account but which was not drawn to her attention. In the circumstances, she was entitled to rely on the advice of her officials and not to ask further questions: R (Friends of the Earth Ltd) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWHC 1841 (Admin); [2023] 1 WLR 225 per Holgate J at [199] – [200].

Johnson J found that the consultation held by the Secretary of State was adequate and not unlawful:

108 The subject matter of the consultation was technical. Leaving aside the regulatory burden, any decision (including taking no action) was likely to have a substantial impact on airlines, coordinated airports and ACL. There was also the potential for impact on airport retailers, baggage handlers, passengers and others. The proposal was, however, limited in effect, both in terms of its duration and the potential ambit of its impact. It was to last for just 12 months. It would potentially affect, at most, 10% of slots. In its final form (albeit not in the form at the consultation stage), slots could be reallocated so as potentially to mitigate the practical effect on airports.

109 Airlines, co-ordinated airports and ACL were all extremely familiar with the detail of the Slots Regulation and the impact of the closure of the Strait of Hormuz on the operational environment. They were also familiar with the concept of alleviation measures, following the steps that were taken during the covid pandemic. It was not realistic to expect them to provide detailed economic models to forecast the precise impact of the proposal, or any alternatives. However, it was reasonable to expect them to be able to provide the high level information that the Secretary of State was seeking: whether there was evidence that the slot rules would affect the 2026 seasons, whether a hand back provision was appropriate, how it could support operational planning, the appropriate (if any) limit on the slots that could be returned and when the measure should come into effect.

110 That is the context against which the consultation is to be assessed. The question is not whether a longer process would have been better, or whether more or different questions could have been asked, or whether the questions could have been better framed, or the consultation better designed. The question is whether, viewed as a whole and in its statutory and practical context, and applying the Gunning criteria, the consultation was so flawed that the resulting decision was unlawful.

111 Formative stage: The consultation was conducted when the policy proposal was still at a formative stage and when consultation responses could (and in the event did) influence the ultimate decision. To the extent that there is evidence that officials were working on the basis that the proposal would be implemented, that is a reflection of the urgency and the need for contingency planning. It does not show that the outcome of the consultation was a foregone conclusion. The evidence shows that the responses were conscientiously considered. The final form of the draft regulations differed from the proposal in an important respect: the proposed prohibition on the reallocation of returned slots was removed. That amendment responded to concerns raised by Gatwick and other airports. It is inconsistent with any suggestion that the consultation was cosmetic or box-ticking.

112 Sufficient information: The consultation provided consultees with sufficient information to elicit the information that the Secretary of State sought. It explained the proposed hand-back mechanism and invited views on whether alleviation should be provided in that form. It was not necessary for the consultation to rehearse matters already well known to consultees, including the operation of the slots regime and the justified non-utilisation provisions. Nor was the Secretary of State required to provide a complete impact assessment before consulting.

113 The consultation did not make reference to section 14 of the 2023 Act and the condition that the overall effect of the changes should not increase the regulatory burden. It may have been better if it had done so, or if consultees had been asked directly to address the regulatory burden. This omission did not, however, render the decision-making process unlawful. Gatwick, and other airports, were able to explain the burden, including the regulatory burden, that the proposal would put on them. The absence of a separate question framed in the language of section 14(5) did not prevent consultees from making representations on the practical matters relevant to that statutory assessment.

114 Sufficient time: The consultation period was short. Four days would ordinarily be an inadequate period for consultation on a legislative measure of general importance. It would have been possible to ask more questions, or to phrase them in an entirely neutral manner. More information could have been provided to consultees about the options available to Government and about the reasons for the proposal. However, the context is important. There was real urgency to act. The consultation was not addressed to the public at large. It was a targeted consultation of airlines, airports, ACL and other stakeholders. The consultees were sophisticated commercial operators or specialist bodies with knowledge of the slots regime, the minimum usage requirement, the justified non-utilisation framework, and previous instances of slot alleviation. The proposal was limited in its temporal duration and its practical effect.

115 The evidence also shows that the consultation achieved a substantial response. Fifty-nine responses were received, including responses from airlines, airports and other stakeholders. Gatwick itself was able to make a substantive response, including its objection that the measure would have adverse consequences for airports, that the statutory power should not be used and that the consultation was flawed. That does not prove that this was a model consultation process and that the time allowed was ideal, but it is powerful evidence that the consultees were able to understand the proposal and respond to it.

116 The urgency of the context does not displace the requirements of fairness, but it does form an important part of the context within which the fairness of the process is to be assessed. The practical reality was that any consultation process would have to be compressed.

117 Consideration of responses: The fact that officials considered the responses within a short period does not itself establish unlawfulness. The consultees were specialist bodies; the issues were focused; and the Department had relevant expertise in the subject matter. The claimant has not shown that the time taken meant that material points were incapable of being understood or considered. The Secretary of State was provided with a summary of responses, including the fact that airports had unanimously opposed the measure. The law did not require her personally to read every response or to accept Gatwick’s objections.

118 Overall fairness and adequacy of inquiry: It has not been shown that the consultation was flawed. Although it was shorter than would have been appropriate in other contexts, it took place at the appropriate stage when the policy was still being considered, consultees were given sufficient information and sufficient time to respond, and the responses were properly taken into account.

His Honour further rejected the ground relating to the public sector equality duty. See paras [120] and onwards, which are not reproduced here.

Useful for

Short consultation period by government official may be justifiable in the circumstances in administrative decision making

Treaty provisions considered

No treaty provisions considered.

Legislation considered

UK Airports Slot Allocation (Alleviation of Usage Requirements) Regulations 2026/

Key subjects or concepts

Judicial Review/

Appeals history

No relevant appeals or appeal history identified for this case.

Other case information

Lawyers or counsel before the High Court of Justice, England and Wales:

David Elvin KC

Malcolm Birdling KC

Additional case references or citations:

The full citation provided is: Gatwick Airport Ltd, R (On the Application Of) v Secretary of State for Transport [2026] EWHC 1733 (Admin). Case No: AC-2026-LON-002801. See also Gatwick Airport Limited -v- Secretary of State for Transport (July 9, 2026), UK Judiciary.

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