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Rare reversals, robust appellate intervention & unresolved doctrinal questions: the public law team at Herbert Smith Freehills Kramer rounds up a significant period in public law
- Recent decisions show public law in flux, from the rare overturning of Supreme Court precedent to the Court of Appeal rejecting the Divisional Court's overly technical reading of policy that constrained decision-maker discretion.
- Uncertainty persists over the appropriate standard of review and when a duty to consult arises, while the first Court of Appeal decision under the post-Brexit subsidy control regime signals that broad discretion will not stop the courts exposing public law flaws.
Supreme Court overrules itself
The Supreme Court has overruled its own precedent on what amounts to a ‘deprivation of liberty’ for the purposes of Art 5 of the European Convention on Human Rights in Re Attorney General for Northern Ireland’s Reference [2026] UKSC 16. The previous position from its decision in Cheshire West and Chester Council v P [2014] UKSC 19 was an ‘acid test’ for deprivation of liberty, namely whether an individual is subject to ‘continuous supervision
