Gatwick’s challenge to the take-off/landing slots consultation shows why ‘Gunning Three’ is ripe for re-definition.

This is Blog 134

A commentary on R (Gatwick Airport) v Sec of State for Transport   [2026] EWHC 1733 (Admin)

Airports earn some of their revenues from take-off and landing ‘slots’ paid for by the airlines.

So, when the Iran conflict threatened the availability of aviation fuel later this summer, Ministers felt they had to act – by enabling airlines to relinquish some of their slots without invoking the ‘use it or lose’ rule. Airports naturally resisted the likely loss of income!

When Gatwick went to the High Court it was to challenge the process that led to these new regulations. There had been a consultation – but it lasted only four days. In any normal situation this would have been unacceptable, but this was far from mormal. Simon Anglides from The Consultation Institute has succinctly summarised the position, warning practitioners not to read too much into this unusual case. He says, “Do not copy it” and is probably right!

And yet?

Aspects of the Gunning Principles are showing their age, and none more so than Gunning Three where the usual formula is “adequate time for consideration and response” But this was back in 1985, just as personal computers were starting to spread, and right at the dawn of the email age. Responding to a consultation meant posting a letter! Time was a proxy for giving consultees an opportunity to obtain, read, digest a consultation paper, maybe discuss with colleagues and then prepare and type a response.

There never was a definitive standard but 12 weeks became a popular benchmark because so many consultations were run by local authorities and their decision-making generally followed a quarterly committee cycle. Then, when the Blair Government agreed the COMPACT with the voluntary and community sector – and this committed everyone to a 12-week default, it became close to a hard-and-fast rule of consultation.

In 2008, after senior civil servants recovered from the shock of losing a high-profile Judicial Review over the consultation on new nuclear power stations, a new set of Guidance was developed. In preparing that document, I came close to persuading the key official that Government needed a ‘fast-track’ option so as not to encumber every consultation with increasingly unrealistic timescales. In the event, the incoming Coalition Government in 2010 abandoned the Guidelines and replaced them with a loose set of Principles that gave departments permission to use whatever deadline they liked. It became something of a free-for-all, but the Gunning Principle acted as a guardrail and prevented more egregious excesses.

Meanwhile, it was becoming clear that the real constraint on people’s ability to particate stemmed from the growing popularity of online consultation and the ‘digital divide’ became an issue. In time, everyone realised that consultors had to use their best endeavours to engage key stakeholders in a consultation that impacted them. The standard wasn’t really time – it was ‘opportunity’

But how does one judge whether sufficient opportunity has been afforded to interested parties? At least time is a mechanical calculation. Over the years, Courts considered many disputes over the duration of a consultation, ruminating over the concepts of reasonableness or fairness. They were not always generous to consultees who felt aggrieved. Lack of publicity seemed unimportant, and it sometimes felt as if ‘ignorance of the consultation is not a defence!

What seems to have stuck, however is the idea of prejudice. Did the short timescale or limited opportunity make it less likely that relevant voices could be heard? In other words, have JR applicants or their interests been damaged by having been unable to participate in the consultation? As we all know, proving a negative is not always easy, and many a defendant has sought to claim that nothing said by a particular consultee would have made the slightest difference … In most cases, Judges disagree.

The Gatwick case seems a perfectly reasonable application of the prejudice test. In the words of Mr Justice Johnson. 

          “The consultation was not addressed to the public at large. It was a targeted consultation of airlines,    

            airports, ACL (the Company that administers the slots regime)and other stakeholders. The consultees  

            were sophisticated commercial operators or specialist bodies with knowledge of the slots regime, the

            minimum usage requirement, justified non-utilisation framework, and previous instances of slot

            alleviation.”

In other words, consultees knew all about it!

Moreover, the response was satisfactory. No-one said they could not contribute or asked for more time so they could work out what to say. No external parties complained that their interests were overlooked. If there was an argument based on time, I think the speed of the post-consultation decision-making was more contentious, suggesting a ‘done deal’. Here, however, the Government could provide evidence that the responses HAD been considered – and all within a highly restricted timetable arising from the original legislation. The Judge was clear that one had to examine the entire end-to-end decision-making process, and in fact-sensitive cases like this, he found it had been fair.

But throughout this case was an undertone of a rather bigger issue – the burden of regulation. Successive Governments have recently tried (often unsuccessfully) to restrain themselves from obliging industries to navigate excessive administrative hurdles -especially as EU rules were assimilated into British law. Therefore, this case was considering changes to the slots regime under a 2023 Act that stated that it could only do so if it “does not increase the regulatory burden.”  A clear invitation for much debate as to whether they did.

The truth is that many people view consultation as a ‘regulatory burden’, and recent attempts to streamline the  

NSIPs Development Consent Order process is most certainly an attempt to simplify the ‘burden’. So, is a lengthy extensive consultation lasting many weeks inherently more burdensome than a short, sharp exercise – provided it reaches all those who need to be heard? 

In my view, we ask too much of some consultations. We try to cover too much – and perform too many different roles. That is why I keep promoting my FOUR FUNCTIONS FRAMEWORK  - and persuading the profession that we need to design our consultations according to the different objectives – NAVIGATION, EXPLORATION, DETERMINATION and IMPLEMENTATION. (See Blog 115)

Although this short exercise was couched in terms of a decision-making consultation, I think it better viewed as a necessary consultative element in the IMPLEMENTATION of a policy – namely the management of airport take-off/landing slots. Many Regulators and public bodies would probably do well to see if more agile – and yes – briefer consultations should form part of a less bureaucratic and burdensome culture of public administration.

This may not be the last four-day process …!

Rhion H Jones LL.B

July 2026

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