UK Law and Practice Contributed by: Charles Brasted, Julia Marlow, Andrew Eaton and Fraser Eccles, Hogan Lovells International LLP
gather relevant facts, evidence and views before deciding. This is commonly referred to as the “Tameside duty of inquiry” . Failure to do so can result in the court ruling the decision unlawful (R (Plantagenet Alliance Ltd) v Secretary of State for Justice[2014] EWHC 1662 (Admin)). 10.5 Abdication or Fettering of Discretion A body charged with exercising a public func - tion must keep the exercise of the function under constant review (ie, not abdicate its discretion) and must not restrict its future ability to exer - cise its discretion in individual cases. The latter is commonly referred to as “fettering” its discre - tion. If a body does fetter its discretion, it may be liable to challenge on the grounds of illegality (for failing to use its powers as intended) and/ or procedural unfairness (for failing to provide those affected by its decision an opportunity to persuade it to change its mind). Public bodies often adopt policies as to how they intend to exercise their discretion. Such policies are generally permissible, so long as they do not remove completely the freedom of the decision- maker to depart from it, where appropriate. 10.6 Bias As explained at 10.3 Procedural Errors , public bodies are required to perform their functions in a way that is procedurally fair. This includes that the decision does not suffer from actual or apparent bias. It can be challenging to demonstrate actual bias, as this requires knowledge of the state of mind of the decision-maker at the relevant time. The test for apparent bias is whether “fair-mind- ed and informed observer, having considered the facts, would conclude that there was a real pos-
sibility of bias“ (per Porter v Magill [2001] UKHL 67). 10.7 Unequal Treatment Substantive unfairness (for example, due to unequal treatment) is not a free-standing ground of judicial review (Gallagher Group Ltd v Com - petition and Markets Authority[2018] UKSC 25). However, in certain circumstances, such treat - ment could, in principle, amount to irrationality or a breach of human rights, in particular Article 14 ECHR (prohibition of discrimination). 10.8 Human Rights As explained at 3.1 Challenging Primary Legis- lation , the HRA 1998 incorporates into UK law the human rights protected by the ECHR. As such, it is unlawful for a public authority (within the meaning of the HRA 1998) to act in a way that is incompatible with human rights (Section 6 HRA 1998). Section 7 HRA 1998 provides that a person who claims that a public authority has acted (or pro - poses to act) in a way that is incompatible with human rights may bring proceedings under the HRA 1998 or rely on such rights in any legal pro - ceedings. However, they may only do so if they would be “victim” of the unlawful act, meaning they must be directly affected by the act in ques - tion. As such, a claimant who is (or would be) a victim of an alleged unlawful act or decision may bring a challenge on the ground of incompatibility with human rights either: • as a ground of challenge in an application for judicial review, in accordance with CPR Part 54; or • as a free-standing claim under Section 7 HRA 1998, in accordance with CPR Part 7 and
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