When industry bodies, or other interested parties, challenge regulatory decisions via a judicial review, it is the decision-making process, not the conclusion, that is considered in court. This means that the court will decide whether the government followed proper processes and considered relevant evidence in reaching its conclusion.
The quality of the evidence base – and how rigorously it was scrutinised before the decision was made – can directly affect whether a policy survives judicial review.
This post considers three judicial review cases that highlight the important role that the Regulatory Policy Committee's opinions can play.
Why the evidence mattersJudicial review is not about whether a policy is right or wrong. Courts examine process and ask questions such as:
was the decision maker properly informed? were relevant considerations taken into account? was the decision proportionate and supported by evidence? were alternatives properly considered?Impact or option assessments are the documented record of how government reached its conclusions. They capture the evidence base, the options considered, the analysis of costs and benefits, and the rationale for the chosen approach. When a decision is challenged, these can be central to the government's defence.
Independent scrutiny by the RPC adds a further layer of assurance. An RPC opinion confirms that the evidence and analysis have been examined by experts independent of the policy-making department. This can be seen as an audit of the decision-making process and gives assurance that proper process was followed – which matters when a judge is assessing whether a minister acted reasonably.
Three cases, three lessons Standardised tobacco packaging (2016)British American Tobacco v Secretary of State for Health [2016] EWHC 1169 (Admin) was one of the most forensically examined and lengthy judicial reviews of a regulatory decision in recent years. The manufacturers of tobacco products brought a judicial review against government regulations that would restrict their ability to advertise their brands on tobacco packaging or products. The companies challenged the evidence base, arguing that the government could not prove that standardised packaging would reduce smoking.
The judgment examines in granular detail the qualitative and quantitative evidence relied upon by the Secretary of State, including survey data, focus group studies and post-implementation evidence from Australia (where plain packaging policies were already in effect). The judgment repeatedly references the impact assessment, the thoroughness of the government's analytical process and particularly the RPC opinion that determined that the impact assessment was "fit for purpose".
The judge found that the civil servants "conducted an extensive consultative exercise" and that the evidence was "summarised fairly and squarely" in submissions to ministers. The court noted that Parliament "made up its own mind aware of the full range of arguments on all sides of the debate." The government's rigorous approach to evidence-gathering and analysis was central to its successful defence.
Lesson: When facing sophisticated legal challenge, the quality and rigour of the impact assessment is a principal defence. Investment in thorough analysis pays dividends and an independent external opinion provides assurance over the quality of the evidence.
Ivory trade ban (2019)In Friends of Antique Cultural Treasures Ltd v Secretary of State for Environment, Food and Rural Affairs [2019] EWHC 2951 (Admin), antique dealers challenged regulations banning most ivory sales. The claimants argued that EU law prevented the UK from going further than existing European rules.
The court examined whether the government had properly demonstrated the justification for stricter domestic measures. The judgment considered the impact assessment's treatment of evidence about ivory laundering and the effectiveness of existing controls.
While the court noted some limitations in the available evidence – describing certain sources as "highly anecdotal and certainly not quantitative" – it ultimately found that the government had acted within its powers and demonstrated adequate justification.
In reaching its decision the court considered the RPC’s opinion that the impact assessment was "fit for purpose" even though it highlighted some areas for improvement.
Lesson: Courts will scrutinise the quality of the government’s evidence, not just its existence. Civil servants should acknowledge limitations honestly and explain why the conclusions remain sound despite them.
Leasehold reform (2025)In ARC Time Freehold Income v Secretary of State for Housing, Communities and Local Government [2025] EWHC 2751 (Admin), investment funds which owned freehold domestic property challenged certain provisions of the Leasehold and Freehold Reform Act 2024, on the basis that these amounted to unlawful expropriation of their property rights.
The court examined the government's justification for the reforms, including whether the impact assessment properly weighed costs and benefits. The judgment considered the Law Commission's extensive prior work, the consultation process, and the government's stated objectives of making home ownership "fairer and more secure". The impact assessment was considered, as well as the RPC’s rating of "fit for purpose", and the judgment gives a clear explanation of the role of the RPC.
The court found that Parliament had made a rational choice to implement broad reform rather than case-by-case assessment, accepting the government's argument that individual examination "would inevitably cause uncertainty, litigation, expense and delay for both tenants and landlords." Thorough prior analysis by the Law Commission and a proper impact assessment supported this conclusion.
Lesson: Major reforms affecting property rights face heightened scrutiny. Robust evidence of proper process – including independent analysis and thorough consultation – strengthens the government’s position significantly.
The cost of getting it wrongWhen regulatory decisions are challenged by judicial review, the consequences extend well beyond the immediate policy:
reputational damage: public confidence in the government's competence is undermined implementation delay: policies may be set back by years while analysis is redone and new decisions taken resource cost: legal proceedings are expensive for all parties concerned, and re-work diverts analytical capacity from other priorities parliamentary scrutiny: a successful judicial review invites difficult questions about ministerial accountability What this means for government departmentsThree actions will help to strengthen your policy’s position:
1. Champion early engagementEnsure policy teams consult the RPC at the options stage, not just before laying legislation. Early engagement identifies weaknesses in the evidence base when there is still time to address them.
2. Resource analysis properlyAllocate analytical capacity to impact assessments proportionate with the significance of the policy. Major regulatory interventions deserve major analytical effort. Cutting corners on evidence gathering creates vulnerabilities that may only become apparent in court years later.
3. Treat scrutiny as assuranceIndependent scrutiny by the RPC is not bureaucratic challenge – it is quality assurance that protects government decisions. An RPC opinion confirming an impact assessment is fit for purpose provides direct evidence that proper process has been followed. This matters when a judge is deciding whether ministers have acted reasonably.
The RPC provides independent scrutiny of options and impact assessments.
For guidance on preparing assessments, or to discuss early engagement on significant regulatory proposals, officials can contact the RPC secretariat at enquiries@rpc.gov.uk.
seen at 10:35, 9 March in Regulatory Policy Committee.