Burnham’s Britain: Where Might the Public Law Challenges Come From?

The North Sea Dilemma

The government’s approach to North Sea oil and gas remains one of the most closely watched aspects of its agenda and, as we discussed in our blog last year, the legal fault lines in this area have been developing for some time.

Burnham has indicated that his government will take a “pragmatic approach” to domestic energy production, acknowledging that the UK cannot afford to ignore the resources available within its own waters. From an energy security perspective, that position is understandable. However, it sits uneasily alongside the UK’s commitment to achieving net zero by 2050.

The British government must soon decide whether it should give consent to two oil and gas fields following the end of a consultation process – Rosebank in the North Atlantic and Jackdaw in the North Sea. Amid both insecurity of energy supplies and compelling evidence of the climate crisis, the prime minister, Andy Burnham, is facing pressure from the oil and gas industry and unions on one side, and environmentalists on the other.

Labour’s manifesto commitment leaves some wriggle room. While there was a commitment not to approve new drilling licences, Rosebank and Jackdaw both already hold licences.

Both projects were previously approved before those decisions were quashed following a successful challenge by Greenpeace in the Court of Session. Those challenges centred on the adequacy of environmental impact assessments, the treatment of downstream Scope 3 emissions following the seminal decision in Finch and whether approvals are consistent with domestic and international climate commitments. Those issues have not gone away and are likely to intensify as ministers attempt to reconcile support for domestic energy production with the UK’s net zero target.

The decision on Jackdaw and Rosebank may therefore provide an early indication of how the Prime Minister to balance the competing demands of energy security, economic growth and net zero. Legal challenges will inevitably follow – whether in relation to the consultation process or a claim challenging the compatibility of any ministerial consents with the UK’s commitments under the Climate Change Act.

Water Reform and Public Ownership

The water sector presents an equally complex picture. The Prime Minister has recently stated that Thames Water “should be nationalised” and has consistently advocated for greater public ownership of water companies. One option to do so would involve placing the company into a special administration regime (SAR). However, there remains significant uncertainty about whether the Government will put this on top of its agenda.

The timing could hardly be trickier for the government. As drought conditions spread across England and Wales and reservoir levels continue to fall, questions about the performance of the water sector are becoming harder to ignore, not least whether the UK’s ageing infrastructure is fit for the challenges ahead. Against that backdrop, any move towards greater state intervention is likely to attract close attention from those with affected interests.

Any move towards greater public ownership would almost certainly trigger legal challenges. Shareholders, creditors and operators would all have significant interests at stake, with arguments likely to centre on Article 1 of Protocol 1 to the ECHR, compensation and the extent to which government can interfere with existing commercial interests. Thames Water’s lenders have already publicly indicated that they will prepare a legal challenge.

Burnham is no stranger to this form of challenge. As Mayor of Greater Manchester, he successfully defended legal challenges to plans for bus franchising, a reform designed to bring greater public control and accountability to an essential public service. Whilst the water sector involves a different regulatory framework and far higher financial stakes, the underlying tension is familiar. As drought conditions continue to expose the pressures facing the water sector, questions about ownership, investment and accountability are becoming increasingly difficult to ignore.

Devolution

Devolution has long been a lynchpin of Burnham’s political identity. As Mayor of Greater Manchester, he consistently argued that power should move away from Westminster and closer to local communities. The establishment of Number Ten North is a first symbolic move of the shift in focus, but the bigger ambition is significant.

The Prime Minister has promised “the biggest change in 40 years of British politics” with powers over housing, transport, economic development and taxation shifting away from Whitehall and towards regional and mayoral authorities. After years of cautious and limited constitutional reform, this represents a strikingly bold pledge. Burnham’s confirmation that regional mayors are now set to receive a share of income tax receipts indicate that this is already starting to take shape.

But turning devolution from a political vision into a workable framework is likely to prove more challenging than announcing it. This week, the Ministry of Housing, Communities & Local Government launched a consultation on implementing provisions in the English Devolution & Empowerment Act, after announcing over the weekend that mayors would get powers to overrule councils on development decisions – that has already attracted a degree of criticism from the Local Government Association for its potential to create mini-premiers who would take power away from elected local councillors. Shifting powers, funding and decision-making away from Whitehall will inevitably create winners and losers. Those who feel short-changed by the new arrangements may be quick to look for legal remedies.

Any disputes are likely to focus as much on process as substance. Consultation, fairness and compliance with the Public Sector Equality Duty could all come into play, particularly where changes affect local services, funding or representation. The legal basis for any transfer of powers is also likely to come under scrutiny, especially if reforms move faster than the legislation underpinning them.

Burnham has spent years arguing that power should sit closer to the communities it serves. Delivering that vision without becoming ensnared or downtrodden by legal challenge may prove one of the defining tests of his premiership.

Public Procurement and Industrial Policy

Devolution and economic renewal have long gone hand in hand in Burnham’s politics. It is therefore no surprise that public procurement looks set to become an important tool for advancing both. Recent proposals suggest that public contracts will be expected to do more than deliver goods and services, with greater emphasis placed on creating jobs, developing skills and supporting local economic growth. That may prove politically attractive, but carries legal risk.

Procurement law is designed to ensure that public contracts are awarded fairly, transparently and on the basis of objective criteria. That can create tension where government seeks to use public spending to achieve wider economic or social goals. Unsuccessful bidders are often sophisticated commercial operators with significant resources and every incentive to challenge decisions involving contracts worth millions of pounds.

The more procurement is used to deliver industrial policy, the more carefully those decisions will need to be justified. First Secretary of State Louise Haigh has already signalled that the government intends to place greater weight on job creation and skills development when awarding major public contracts, while encouraging departments to use procurement as a tool to support domestic growth. Yet disappointed bidders may argue that social value considerations or support for UK-based suppliers have been prioritised over competition, equal treatment or value for money. Such challenges can be costly, time-consuming and, in some cases, possibly sufficient to derail major projects altogether.

For a government keen to demonstrate that economic growth is being felt beyond Westminster and the South East, procurement offers an obvious route to delivery. Burnham has previously indicated that he was inspired by the “Preston model” of procurement, where public institutions are encouraged to localise their spending. Whether procurement law proves flexible enough to accommodate Burnham’s ambitions may become a litigated question in the months ahead.

Social Care

Social care has long been the graveyard of political promises, and the Prime Minister appears determined to succeed where others have failed. The issue has a habit of consuming political capital, something the Prime Minister knows all too well. As Health Secretary under Gordon Brown, he found himself at the centre of a row over social care funding proposals that opponents successfully branded a “death tax“. More than a decade later, he is once again trying to find a lasting solution. He has pledged to “lift up” the social care workforce through improved pay, better training, greater job security and closer integration with the NHS, while also accelerating plans for a National Care Service. Few would dispute the need for reform. The difficulty, as ever, lies in implementation.

Unlike some of the government’s other flagship proposals, social care reform appears to be built around consensus. Burnham has openly acknowledged that successive governments have failed to deliver a lasting solution and has sought to bring opposition parties into the conversation from the outset. Alongside that, the government’s Big Conversation on Care signals a recognition that lasting reform is unlikely to succeed without broad political and public support.

Even so, significant challenges remain. Changes affecting providers, workforce arrangements and funding models could prompt challenges from a wide range of stakeholders. Local authorities may question the viability of proposed funding structures. Providers may challenge consultation processes or the assumptions underpinning reform. Service-user groups may argue that equality, accessibility and the impact on vulnerable individuals have not been adequately considered.

Early Prisoner Release

The prison crisis has already forced the government into one of its most difficult decisions. Faced with a looming prison capacity crisis, Justice Secretary Alex Norris has warned that England and Wales could run out of prison spaces as soon as October. The government had announced a scheme under which 5,000 additional prisoners will be released in ten batches from October, on top of the 4,500 who typically leave prison each month. The policy has already been paused and revised once in response to public pressure. Prisoners convicted of rape, grooming and serious child sex offences will now be excluded, removing around 1,000 individuals from the scheme. But the revised plans have done little to quell the controversy. If anything, the debate has shifted to where the line should be drawn and which offenders should remain eligible for early release.

The response has been forceful. The families of victims, policing bodies and campaign groups have all questioned whether the current exclusions go far enough. Particular concern has been expressed about offenders convicted of serious violent offences, including those responsible for the deaths of emergency service workers (with those convicted in relation to the death of PC Andrew Harper being used as examples of individuals who should not be eligible for early release). The Police Federation has indicated that it may seek judicial review of the scheme, underlining how quickly the new government has found itself exposed to a probable public law challenge.

The precise grounds of any challenge will depend on the shape of the policy that ultimately emerges. However, issues likely to feature prominently include the lawfulness of the decision-making process, the adequacy of risk assessments, whether victims’ interests have been properly considered and the rationale for including or excluding particular categories of offender. Practical concerns around implementation may also attract scrutiny, particularly given the uncertainty the revised scheme has created for prison governors, probation services and those responsible for managing releases.

The Prime Minister has now indicated that he will do what he can to minimise the number of those released but is faced with the reality of a collapsing prison system. Where the line is drawn is likely to remain contentious, and those who disagree with it may ultimately look to the courts.

Sahil Kher is a senior associate in the public law team. His practice covers all aspects of public law from judicial reviews to public inquiries, with particular expertise in environmental and climate change judicial reviews, planning challenges, human rights-based challenges, and public procurement litigation.

Úna Campbell is a trainee solicitor at Kingsley Napley and is currently sitting in the Public Law team. She works on a broad range of public law matters, including judicial reviews, inquests and public inquiries.