UK Law and Practice Contributed by: Charles Brasted, Julia Marlow, Andrew Eaton and Fraser Eccles, Hogan Lovells International LLP
services may be susceptible to judicial review if tainted by fraud, corruption or bad faith (Mercury Energy Ltd v Electricity Corporation of New Zealand [1994] 1 WLR 521). • Decisions or actions by private bodies can be susceptible to judicial review where the pri - vate body is performing a public function on behalf of the State (for an example where this was the case, see R v Panel on Takeovers and Mergers, ex parte Datafin plc [1987] QB 815; for an example to the contrary, despite the private body carrying out a function on behalf of a public body, see R (Holmcroft Properties Ltd) v KPMG LLP [2016] EWHC 323 (Admin)). • Decisions of regulatory bodies may be susceptible to judicial review where such decisions are “woven into the fabric of public regulation” (R v Disciplinary Committee of the Jockey Club, ex parte The Aga Khan [1992] EWCA Civ 7), although this is less likely where those subject to regulatory decisions have submitted voluntarily (R v Football Associa - tion Ltd, ex parte Football League Ltd[1993] 2 All ER 833). 3. Nature of the Decision 3.1 Challenging Primary Legislation Pieces of primary legislation, known as Acts of Parliament, are not susceptible to judicial review. This is because of the principle of parliamentary sovereignty, which is recognised as a founda - tional principle of the UK constitution: that Par - liament may make and unmake any laws, and laws enacted by Parliament are the highest form of law in the UK’s legal system. This general position is subject to a few limited exceptions.
• It is possible to challenge Acts of Parlia - ment by way of judicial review on the ground of incompatibility with rights protected by the European Convention on Human Rights (ECHR) and given legal effect in the UK by the Human Rights Act 1998 (the “HRA 1998” ). However, where incompatibility is established, the only available remedy is for the court to make a declaration of incompatibility (Sec - tion 4 HRA 1998), which does not affect the validity, continuing operation or enforcement of the challenged Act, nor is it binding on the parties to the proceedings. • Under Section 3 HRA 1998, the courts also have a duty, so far as it is possible to do so, to read and give effect to primary legislation (and subordinate legislation) in a way that is compatible with the rights protected by the ECHR. This can result, in certain cases, in the court “reading in” or disregarding words or provisions in the text of primary legislation in order to render it compatible with the ECHR (see, eg, Ghaidan v Godin-Mendoza [2004] UKHL 30). • Following the UK’s withdrawal from the Euro - pean Union (EU), Section 29 of the European Union (Future Relationship) Act 2020 (EUFRA 2020) provides that domestic law (including primary legislation) in force prior to 1 Janu - ary 2021 (the date on which the Trade and Cooperation Agreement (the TCA) agreed between the UK and the EU came into force in the UK by virtue of EUFRA 2020) has effect with “such modifications as are required for the purposes of implementing... [the TCA]... so far as... [the TCA is]... not otherwise so implemented and so far as such implementa- tion is necessary for the purposes of com- plying with the international obligations of the United Kingdom under the agreement” . As such, while the scope of this provision is yet to be fully tested by the courts, where
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