UK Law and Practice Contributed by: Charles Brasted, Julia Marlow, Andrew Eaton and Fraser Eccles, Hogan Lovells International LLP
oped under the common law. This is sometimes referred to as the principle of “legality” . Therefore, “illegality” , as an available ground of judicial review, concerns whether the decision or action of a public body is illegal for want of lawful authority under statute or common law (or, in certain cases, the royal prerogative – see 10.11 Exempt Decisions ). This ground of chal - lenge arises when a decision-maker: • acts outside the scope of a power granted to them by Parliament; • misdirects themselves as to the applicable law; and/or • exercises a power wrongly or for an improper purpose. 10.3 Procedural Errors “Procedural impropriety or unfairness” is an available ground of judicial review. It arises when a decision-maker has not complied with: • applicable statutory procedures – for exam - ple, to consult before reaching a decision; and/or • the common law principles of procedural fairness – for example, by failing to give those affected by the decision an effective oppor - tunity to participate in the decision-making process. Whether a decision complies with these require - ments is often highly fact dependent. 10.4 Factual Errors The courts are reluctant in judicial review to engage in critical analysis of the substantive merits of a decision under challenge. The courts will generally seek to assess the lawfulness of decisions by reference to the facts as present - ed by the parties and, in cases where the facts
are contentious, assume them in favour of the defendant. However, there are circumstances in which the courts will engage in a limited con - sideration of the substantive merits of the deci - sion, including the facts upon which the decision is based. These circumstances are commonly grouped under the broad ground of “irrationality” or “unreasonableness” . A court may find a decision to be “irrational” when it considers the decision to be “outside the range of reasonable responses” (R (Law Society) v Lord Chancellor[2018] EWHC 2094 (Admin)). In practice, such a finding might be reached, for example, where the decision is based on evidence that is not reasonably capable of sup - porting a finding of fact on which the decision depends. The standard of review to be applied by the courts when assessing irrationality is flexible and depends on the circumstances. For example, the courts will often be slow to criti - cise the reasoning of the decision-maker where they are deemed better placed than the courts to reach conclusions on technical matters. By contrast, the courts will apply “anxious scrutiny” in respect of decisions that allegedly infringe fundamental constitutional rights (see also 10.9 Proportionality ). A material mistake of fact giving rise to unfair - ness is an available ground of judicial review where the mistake: • concerns a fact that is uncontentious and objectively verifiable; • played a material part in the decision-maker’s reasoning; and • was not a mistake for which the claimant was responsible. Public bodies are required when exercising their functions to undertake reasonable inquiries to
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