The Administrative Court’s recent decision in a judicial review challenge[1] about the use of an RAF base for civil aviation purposes is a timely reminder of the deference that is frequently afforded to expert regulators. 

The claimant of operators of private airports at Oxford, Farnborough and Biggin Hill had raised concerns to the CAA over the safety of RAF Northolt (RAFN) being used for civil aviation purposes. At the heart of the issue appears to have been a concern that the different (and apparently more limited) safety standards applicable to military airbases even when they are used for civil air traffic (e.g. private flights) put those operators at a competitive disadvantage. 

The CAA carried out an investigation into the claimants’ safety concerns but found no grounds for corrective action.  This decision was challenged by the claimants through a judicial review challenge. 

The judicial review

Some of the grounds did not receive permission to proceed from the Court. This meant that at the substantive hearing, the issues to be determined were, in summary, whether the CAA had:

• Failed to carry out a rational assessment of safety at RAFN.
• Misconstrued and/or misapplied applicable international guidance.
• Unlawfully delegated its responsibilities for the safety of civil aviation to the Military Aviation Authority (MAA) and/or to a joint group, the Government Aerodrome Co-ordination Group (GACG), which CAA had formed with MAA. 

The court ultimately dismissed the claim on all of these grounds.

In its decision, the Court relied on an earlier judgment involving the claimant[2] which had laid out the proper approach for the CAA to follow in discharging its responsibility to assess the safety of RAFN for civil aviation. It established the following principles:[3]

1. The CAA may properly rely on information, assessments and published material carried out and provided by the MAA in its decision making. This includes risk assessments, assessments of compliance and gap analyses.
2. The CAA was not bound to apply the standards set out in the international guidance in the circumstances. The relevant guidance does not apply directly to government / military facilities. In the circumstances the Court considered it informative but not binding on the CAA.
3. The question for the CAA is whether RAFN provides for safe civil aircraft operations, having regard to its individual geographical and operating circumstances.

The Court considered the CAA had acted in accordance with those principles. It placed emphasis on the CAA’s commission of technical and scientific advice from its specialist personnel. 

On the issue of unlawful delegation, the Claimants had argued that particular passages in the Agreement between the CAA and MAA were evidence of unlawful delegation of the CAA’s legal powers to the MAA.  The Court examined the relevant facts and evidence holistically. Considered in the proper context, the Court considered that the Agreement was intended to facilitate the CAA’s performance of its statutory functions by receiving the GACG’s considered judgment before taking its final decision. This was not unlawful delegation.

Wider implications

Any party seeking to challenge a regulatory body’s decision based on irrationality must be prepared that it will face a high hurdle to meet. As we have previously discussed  in our top ten takeaways on judicial review cases, cases based on grounds of irrationality have a much lower success rate because of the degree of deference afforded to the expert regulators. The Claimants in this case attempted to address this by arguing “harder edge” questions of lawfulness: i.e. that the CAA had unlawfully delegated its decision-making. On the specific facts, however, these were not successful.

Claimants with concerns about a decision of an expert regulator in its area of expertise need to consider, plan and lay the groundwork for possible challenge at an early stage. Early, specialist, legal advice will be critical to maximising prospects of success.