UK Law and Practice Contributed by: Charles Brasted, Julia Marlow, Andrew Eaton and Fraser Eccles, Hogan Lovells International LLP
primary legislation enacted before 1 Janu - ary 2021 is, on its face, incompatible with certain of the UK’s international obligations under the TCA that are not otherwise imple - mented in domestic law, Section 29 EUFRA 2020 appears to empower the courts to make necessary modifications to primary legislation to ensure compliance. 3.2 Challenging Secondary Legislation Secondary legislation (including statutory instru - ments such as orders, regulations and direc - tions) is generally adopted pursuant to powers contained in primary legislation. Secondary leg - islation is susceptible to judicial review. Secondary legislation may be challenged on all grounds generally available in judicial review (see 10. Grounds ). For example, such grounds might include that the secondary legislation has been made for an improper purpose or in a manner outside the scope of the power in primary leg - islation, or that an incorrect or unfair procedure has been followed (although the parliamentary process of adopting secondary legislation can - not be challenged in the courts). 3.3 Government Decisions Affecting Sole Individuals It is possible to bring judicial review challenges to government decisions affecting a single indi - vidual, if the relevant claimant has standing to do so (see 6.1 Requirements for Administrative Law Challenges ). 3.4 Agreements Between Private Entities and Public Bodies Where government has entered into a private law agreement (such as a contract) with a private entity, it may be possible to challenge the enter - ing into, or actions taken (or not taken) under, the contract by way of judicial review where this
relates to the fulfilment of a public function (see 2.1 Determining Susceptibility ). Whether this is the case will depend on the circumstances. While the existence of a private law cause of action does not automatically render judicial review unavailable, the courts may determine that a contractual dispute with government should properly be resolved via private litigation rather than judicial review. 3.5 Challenging Decisions Without Legal Effect Judicial review is generally only concerned with actions that have, or will have, substantive legal consequences – for example, by conferring or restricting legal rights, powers or interests. Therefore, the court may refuse to hear a judicial review if the decision under challenge has no legal effect or the alleged flaw is merely aca - demic or hypothetical. However, decisions or actions having no legal effect, such as advice or guidance, may still be capable of having substantive legal conse - quences and therefore could, in principle, be susceptible to judicial review. For example, see R (Police Superintendents’ Association) v The Police Remuneration Review Body[2023] EWHC 1838 (Admin). 4. Nature of the Decision-Maker 4.1 Judicial Review of Commercial and Non-Governmental Decisions As explained at 2.1 Determining Susceptibil- ity , whether a decision is susceptible to judicial review depends on the nature of the decision in question; the status or nature of the deci - sion-making body (including whether they are commercial and non-governmental in nature) is
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