Clarifying Recent Commentary on the Judicial Review

Andrew Gilruth
13 minutes ago
4 min read

✅ KEY TAKEAWAY: Online commentary misrepresents the High Court’s procedural decision. The Moorland Association is appealing to ensure wildfire risk and legal accountability are properly examined, as the court never ruled on merits.

Following the publication of our recent update explaining why the Moorland Association is appealing the High Court’s refusal of permission in the judicial review, some have contacted us about commentary circulating online.

This note is intended to sit alongside our earlier update on the appeal and to help members understand how some online commentary differs from the legal reality. It provides context and clarification where public commentary may give an incomplete impression of what the Court decided and what the appeal involves.

A reminder of what the Court did - and did not - decide

The High Court decision in January was a procedural decision at the permission stage.

At that stage, the Court does not decide whether government policy is right or wrong, nor whether land management practices are beneficial or harmful. The sole question is whether a legal challenge is arguable and should proceed to a full hearing.

No findings were made on:

the merits of controlled or preventative burning
the effectiveness of fuel management in reducing wildfire risk
whether the regulations represent good or bad policy

Those issues were not determined by the Court.

Commentary versus legal reality

Some online commentary has presented the decision as if the Court had ruled the Association’s arguments to be hopeless or without foundation.

That is not how permission decisions operate in law.

A refusal of permission:

does not mean a case lacks substance
does not amount to judicial endorsement of government policy
does not involve a determination of disputed evidence

Permission decisions often turn on fine procedural judgments and are routinely appealed where there is an arguable error of law.

Myth vs Fact: clarifying phrases used in recent online commentary

The points below address specific phrases used in recent online commentary and explain what they mean in legal terms, which can differ from everyday usage.

Myth: “High Court throws out Moorland Association’s legal challenge.”

Fact: The High Court refused permission for the judicial review to proceed to a full hearing. This was a procedural decision at the permission stage, which decides only whether a case can proceed, not whether it is right or wrong. The Court did not rule on the merits of the regulations or the evidence behind them.

Myth: The challenge was “hopeless”.

Fact: “Hopeless” is not a legal finding made by the Court. At the permission stage, the test is whether a claim is arguable, not whether it will ultimately succeed. A refusal of permission does not amount to a determination of the substance of the arguments or the evidence.

Myth: The Defendant’s barrister “demolished each of the Moorland Association’s grounds”.

Fact: The Court heard submissions from both parties and then delivered a procedural decision on permission. No grounds were determined on their merits at the permission hearing, and no factual or scientific disputes were resolved by the Court.

Myth: The Association wanted “to get out and set fire to grouse moors before the end of this year’s burning season”.

Fact: This phrase mischaracterises the purpose of the case. The Association’s legal challenge does not seek unrestricted burning. It concerns whether wildfire risk and public safety were lawfully considered when the regulations were developed.

Myth: The hearing was a “renewal” hearing following a refusal on the papers.

Fact: A judge considered the papers and directed that the application should proceed to an oral permission hearing. There was no prior refusal on the papers, and the January hearing was the first occasion on which the Court considered the arguments at an oral hearing.

Myth: The Court’s decision shows that the regulations are justified and should not be questioned.

Fact: The Court did not decide whether the regulations are justified as a matter of policy or evidence. It decided only that the legal challenge should not proceed beyond the permission stage. That question has not yet been examined at a full hearing.

What the Association’s case has always been about

The Association’s legal challenge has never been about opposing peatland protection or seeking unrestricted burning.

It has consistently focused on process and public safety, in particular:

whether wildfire risk was lawfully assessed
whether warnings from fire authorities were properly followed up
whether decisions were supported by an adequate evidential record

Those are legitimate questions in public law, especially where policies may have real-world consequences for emergency services, communities and landscapes.

Why the appeal matters

The appeal does not ask the Court of Appeal to decide the policy itself. It asks a narrower question: whether the High Court applied the correct legal test when refusing permission, and whether issues concerning wildfire risk and decision-making process should have been examined at a full hearing with disclosure.

A measured approach in a noisy debate

Upland management is increasingly debated in public, often in polarised terms. Some commentary reflects strongly held views rather than the legal or procedural reality.

The Association’s approach remains measured and evidence-led. We will continue to:

comply with the law as it stands
engage constructively with policymakers and fire authorities
challenge decisions where appropriate, proportionate and lawful

The current regulatory position has not changed. Members and gamekeepers should continue to comply with the law as it stands. The appeal does not affect the current burning season or licensing requirements. The Association’s appeal is about accountability and process, not short-term operational relief.

Keeping members informed

We will continue to update members as the appeal process progresses and as further decisions are taken. As ever, we are grateful for the professionalism and restraint shown by members and gamekeepers during what is often an emotionally charged public discussion.

Members should be reassured that the Association’s approach remains careful, legally advised and focused on long-term public safety and land management outcomes.