R (on the application of Public and Commercial Services Union) (Appellant) v Secretary of State for the Home Department (Respondent)

Case summary

Case ID

UKSC/2026/0007

Parties

Appellant(s)

Public and Commercial Services Union

Respondent(s)

Secretary of State for the Home Department

Issue

In early 2024 the Appellant brought a judicial review claim against the Home Secretary challenging the legality of certain regulations on industrial action. Following the July 2024 general election, the new Home Secretary agreed to repeal the regulations and the claim was discontinued. The courts below did not order the Home Secretary to pay the Appellant’s litigation costs. Were they wrong not to do so?

Facts

In 2023 Parliament passed the Strikes (Minimum Service Levels) Act (“the 2023 Act”). This Act permitted Secretaries of State to make regulations requiring minimum levels of service continued to be provided during public sector strikes. In December 2023, the then Secretary of State for the Home Department (“Home Secretary”) made Regulations under the Act empowering himself to make orders requiring that during any strike by border guards, ‘the border services are no less effective than they would be if the strike were not taking place’ (“the Regulations”). The Public and Commercial Services Union (“the Appellant”) is a trade union which represents civil servants and other public sector employees, including border guards. The Appellant and other trade unions mounted a political campaign against the 2023 Act, arguing it unfairly restricted the right to strike. This political argument was accepted by the then opposition Labour Party. In May 2024, the Labour Party committed to repealing the 2023 Act if it won the upcoming general election. The Appellant also initiated judicial review proceedings arguing that the Regulations were unlawful. The Appellant argued that the Regulations were incompatible with border guards’ right to participate in trade union activity under Article 11 of the European Convention on Human Rights. The Labour Party won the July 2024 general election and subsequently formed a government. In August 2024, the new government’s Minister for Migration and Citizenship wrote to the Appellant stating that the 2023 Act would shortly be repealed and that, in the interim, the new Home Secretary would not use her powers under the Regulations. Shortly afterwards, Government Legal Department wrote to the Appellant stating that its judicial review claim was now academic and should be discontinued. The Appellant discontinued its claim but filed cost submissions arguing that it should receive its full costs, on the basis that its claim had been ‘wholly successful’. The Home Secretary argued that no costs order should be made, as the claim had not succeeded but merely become academic for political reasons. The High Court accepted the Home Secretary’s argument and made no order as to costs. The Court of Appeal held that the High Court had been entitled to reach this conclusion.

Date of issue

14 January 2026

Case origin

PTA

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