High Court dismisses Gatwick challenge to aircraft slots alleviation measure

On Thursday 9 July 2026, Mr Justice Johnson in R (Gatwick Airport Ltd) v Secretary of State for Transport & Others [2026] EWHC 1733 (Admin), following a significantly expedited hearing, rejected a claim for judicial review by Gatwick Airport Limited (GAL) to quash the Airports Slot Allocation (Alleviation of Usage Requirements) Regulations 2026. The Regulations were made under s. 14 of the Retained EU Law (Revocation and Reform) Act 2023 (REULA), and amended the minimum usage requirements under the retained EU Slots Regulation. They were signed on 17 June and came into force on 19 June. Those powers were subject to a sunset clause which prevented any further regulatory changes under s. 14 after 23 June 2026 (s. 14(9)).

The Judicial Review claim was made on the same day as the Regulations were made. Following an abandoned application for interim relief by GAL, which had been listed for hearing on 22.6.26, Chamberlain J ordered an expedited rolled up hearing which was heard on 7 July, and in the morning of 9 July, Johnson J, handed down his order at around 9am to allow any airlines waiting for the decision to take advantage of the first period of slot handback which expires at the end on 9 July. He handed down his detailed reasons in the afternoon, explaining why, although he granted permission to bring the Judicial Review, he dismissed it. The proceedings in the High Court therefore commenced and concluded within four weeks.

The hearing included counsel for the main parties and for IATA, British Airways and Tui and written representations were made by A4A.

Challenge had been made to the vires of the regulations based on an alleged failure by the Secretary of State to consider or deal rationally with the precondition in s. 14(5) of REULA that -

"No provision may be made by a relevant national authority under this section in relation to a particular subject area unless the relevant national authority considers that the overall effect of the changes made by it under this section… in relation to that subject area does not increase the regulatory burden."

It was also alleged that the four day consultation period was inadequate and a new ground was sought to be included alleging breach of the public sector equality duty.

The judge, while rejecting submissions that there had been a lack of promptness since GAL were aware of the likely regulations as a result of Parliament's approval of the draft regulations, refused permission to add the new PSED ground, granted permission for the vires and consultation grounds but dismissed the claim for JR.

At [75]-[82] the judge held that the Regulations created a voluntary scheme within s. 14(6) (which is deemed not to increase the regulatory burden) but additionally rejected the alleged failure to consider the regulatory burden issue and alleged irrationality of the decision to make the Regulations, rejecting the wide approach advanced by GAL to the concept of "regulatory burden": [83]-[102].

Johnson J also considered that the consultation and the consideration of the consultation responses had been sufficient applying the Gunning criteria, and were not so unfair as to be unlawful: [104]-[119]. The issue was intensely context specific -

"107. An urgent decision was required. The time available to make a decision was limited. Once the Strait of Hormuz closed in March 2026, there was real uncertainty as to when it would re-open and what the impact would be on air travel. The evidence shows that the Government acted rapidly to assess the likely implications and the options available to mitigate risks. It has not been shown that the Government could, realistically, have embarked on a consultation exercise substantially earlier than it did. So the consultation could not, realistically, have commenced substantially earlier than 5 May 2026. The 2026 summer season had already begun. Any slots returned in accordance with the proposed policy first required at least 14-days notice to be given to passengers. Any regulations had to be made by 23 June 2026 at the very latest, because the power to make regulations only lasted until that date: section 14(9) of the 2023 Act. Regulations could only be made if a draft was first laid before and approved by both Houses of Parliament. Each House of Parliament had to be given sufficient time to consider and debate the issue. Parliament rose for Whitsun recess on 21 May and returned on 1 June. The advice of officials was that this meant that the draft regulations had to be laid before 19 May 2026. This advice has not been, and could not realistically be, criticised. Sufficient time needed to be afforded to consider the consultation responses, to make any adjustments to the policy proposal in the light of the consultation responses, and to prepare the draft regulations. This all meant that the time available for any consultation would inevitably be short.

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.”

David Elvin KC acted for the Secretary of State for Transport.